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HARVARD LAW SCHOOL
LIBRARY
VIRGINIA COLONIAL DECISIONS
VOL. II
THE REPORTS
BY
SIR JOHN RANDOLPH
AND BY
EDWARD BARRADALL
OF DECISIONS OF
The General Court of Virginia ccolovu-ij^^nf *v
1728-1741
Edited, with Historical Introduction
BY
R. T. BARTO N
BOSTON, MASS.
THE boston book COMPANY
1909
VTK
Copyright, 1909
By the boston book company
JUNE 11.1929
Th9 RivirdaU Prtss^ Brookling, Mass,^ U, S, A,
BARRADALL'S REPORTS
>• ' "t •• ■»'
BARRADALL'S REPORTS
Presented to the Virginia State Law Library at
Richn\ond by Conway Robinson, Esq.
[1]
COPY OF SIR WILLIAM JONES HIS MAJESTY'S ATTORNEY
GENERAL HIS OPINION ABOUT COL. BURNHAM'S WILL
I, having perused the Will of Lieut. Col. Bumham, and
the Depositions relating to the same, Am of Opinion;
That this is undoubtedly a good Will, if not avoided by the
Act of Parliament made in England, Anno 1677 against Frauds,
&c. For it clearly appears, the Devisor was Compos Mentis
and understood himself well and did willingly and with a full
Desire, both cause the same to be written, and did after sign
and publish the same. Aiid Whereas there were only two
Witnesses, who did, in the Presence of the Testator, subscribe
their names as Witnesses, and more Persons being present, who
were Witnesses to the same, One of them hath since set his Hand
thereto; I think, though it was not discreetly done to do so,
yet, being done, it nothing vitiates or makes void the Will.
That this Will made in Virginia of Lands there, is not within
the Compass of the Act above said. So as that it should be
necessary to have Three ^Witnesses subscribing their Names in
the Presence of the Testator, (as that Act requires for Devises
of Lands in England) For though I do agree, that an Act of
Parliament made in England doth bind Virginia or any other
of the English Plantations where they are expressly named,
Yet I do conceive a new Law or Statute made in England, not
naming Virginia or any other Plantation, shall not take Effect
in Virginia or the other Plantation, 'till received by the General
Assembly or others who have the Legislative Power in Virginia
or such other Plantation, and this upon a double Reason,
1st. Because the Parliament of England, when they make a
Law without naming more Places than England as the Extent
to which it shall relate, are not to be presumed to have Con-
sideration of the particular Circumstances and Conditions of
B2 VIRGINIA COLONIAL DECISIONS
the Plantations, especially considering no Member come from
thence to the Parliament of England.
2dly. Because the Plantations have their own Representa-
tives, and though the Parliament of England hath a superior
Power, when they think fit in express Words, to execute it;
Yet it shall not be presumed, that they execute that extraordi-
nary Power, when they do not in express Words declare it. And
as this hath been anciently resolved in many Cases with Relation
to Ireland, So I think the same Reasons hold with Relation to
the Plantations, And if it should be otherwise this great Incon-
veniency amongst others would follow. That a Law made in
England (which relates, if no time be expressed to the first
Day of the Parliament, and when a Time is set it shall take
Effect; it is commonly so short a Time as no Notice can arrive
to the Plantations before it begins to take Effect) should bind
the Plantations, who have not any ready Means to know it for a
long Time after it is passed; And so then should be bound by
Law of [2] which they are, or may be reasonably supposed
necessarily & invariably ignorant.
William Jones.
7 ber 22d 1681.
A Dispute happened in this Country upon this Will of Col.
Bumham in the Lord Culpepper's Time; and his Ldp. upon his
Return to England, stated the above Case to Sir W'm Jones, and
after he had obtained his Opinion, he shewed it to all the then
Judges of England, Who declared the same to be Law: And this
his Ldp. when he came a second Time to Virginia, affirmed in
open Court at James City County. — I have been informed by
Mr. Thomas Lee, who found amongst the papers of his Father,
then I believe, a Judge of the Court, a Memd. to this purpose.
[Note by W, G.] (All of the foregoing opinion and subjoining memorandum
except what of the latter is contained within parenthesis at the end, is printed
in North Carolina Law Repos. 21-23.)
OPINION OP SIR EDWARD NORTHEY ABOUT ADVOWSONS
IN VIRGINIA.
On Consideration of the Laws of Virginia, Provision being
made Act entitled, Church to be built or Chapel of Ease, for
the building a Church in each Parish; and by the Act entituled,
Ministers to be inducted, that the Ministers of each Parish shall
be inducted on the Presentation of the Parishioners, And the
BARRADALL'S REPORTS B3
Church Wardens being, by the Act entituled, Church Wardens
to Keep the Church in Repair, and provide Ornaments to collect
Minister's Dues, And by the Act for the better Support and
Maintenance of the Clergy, Provision being made for the Min-
isters of the Parishes, And the said Act for inducting Ministers,
the Governor being to induct the Ministers to be presented and
thereby he being constituted Ordinary and as Bishop of the
Plantation and with Power to punish Ministers for preaching
contrary to that Law;
I am of Opinion the Right of Presentation to the Church is
subject to the Laws of England (there being no express Law, of
that Plantation made further concerning the same) therefore
when the Parishioners present their Clerks and he is inducted
by the Governor (who is to be and must induct on the Presen-
tation of the Parishioners) the Incumbent is in for his Life, and
cannot be displaced by the Parishioners; If the Parishioners do
not present a Minister to the Governor within six months after
any Church shall become void, the Governor as Ordinary shall
and may collate a Clerk to such Church by Lapse, and his Col-
late shall hold the Church for his Life. If the Parishioners have
never presented [3] they may have a reasonable Time to present
a Minister, but if they will not present, being required so to do,
the Governor may also in their Default collate a Minister.
In inducting Ministers by the Governor on the Presentation
of the Parishioners or on his own Collation, he is to see y'e
Minister be qualifyed according as that Act for inducting Min-
isters requires. In Case of the Avoidance of any Church
the Gov*r as Ordinary of the Plantation is according
to the Statute 28th. H. 8th Cap 11. Sect 5th to appoint a
Minister to officiate till the Parish shall present one, or the six
months be lapsed and such person appointed to officiate in the
Vacancy is to be paid for his Service out of the Profits thereof
from the Time the Church becomes void. By the Law above
stated in this Case No Minister is to officiate as such till he hath
shewed to the Gov'r He is qualifyed according as the said Act
for Induction directs. If the Vestry do not levy the Tob'co, the
Courts there must Decree the same to be levyed.
Edward Northey
July 29th 1703.
[Note by W. G. j (This Opinion and another in the same matter are published
in Chalmers Col. Opins. (Edn. Btirlington 1858) pp. 66-60.)
B4 VIRGINIA COLONIAL DECISIONS
OPINIONS OP S'R EDWARD NORTHEY AND DR. HINCHMAN
ON THE FOLLOWING WILLS
William Wilkinson of the Province of North Carolina made
his last Will and Testam. in Writing Part of w'ch was in these
Words.
I give and bequeath unto my Loving Wife Esther Wilkinson
and to her Heirs forever All my Whole Estate Real and P'sonal
in what kind soever & wheresoever it may be known or found in
this Country or any other parts of the World any ways belonging
or appertaining to me the said W*m Wilkinson. Making her
the said Esther Wilkinson whole and sole Exe'x of this my last
Will and Testament to receive and pay all my just Debts and
Legacies. And farther it is my Will That in Case mysaid ExE'x
above named shall depart this Life without making of a Will
or otherwise disposing of this my said Estate or any part or
P.cel thereof but what shall be remaining at her Death shall
fall to the nearest of my Relations &c.
And after the Death of his Said Wife if she dyed without a
Will or without disposing of the Said Estate he appointed
several P.sons his Ex'ors whereof Thomas Luton was one who
was a Relation of the said W*m Wilkinson's.
Esther Wilkinson afterwards married Coll'o Pollock and dyed
[4] a Feme Covert but made her Will where she gave All the
Lands & other Estate given her by her Said first Husband's Will
(Some few Legacies excepted) to the said Thomas Luton and his
Heirs forever.
S'R EDWARD NORTHEY'S OPINION
I am of Opinion by the Will of W'm Wilkinson his Wife had a
qualified Fee Simple in the Estate devised to go over as directed
by the Will if she did not dispose of it, and therefore as to the
Power of disposing of the Estate it was an Authority in her
w'ch she might execute, Notwithstanding her Coverture, And
hath well executed it by her Will, as to the Real Estate, but
as to the P.sonal Estate of her first Husband by her Marriage
she hath disposed of it to her Second Husband And he thereby
became absolute Owner of the P.sonal Chattels in her posses-
sion As to her other Estate she (being a married Woman)
could not dispose thereof without her Husband having the
Interest in the Estate and not only an Authority to dispose &
BARRADALL'S REPORTS B5
therefore that will descend to her Heir at Law if she had the
Inheritance And if her Devisee (of Wilkinson's Lands) be out of
Possession he must recover them by Ejectment.
Edward Northey
July 10th 1716
then Att General
Que: Whether S'r Edward Northey is not mistaken as to the
P.sonal Estate Seing she had it as ExEx and never made any
Declaration That she took it as Legatee.
HUMPHRY HINCHMAN L.L.D. NOW THE BP. OF LONDON'S
CHANCELLOR HIS OPINION
I am of Opinion That Thomas Luton would have been
intituled to all the Estate of W'm Wilkinson the property of
w*ch had not been altered by the dece'd Esther in case he could
prove himself the next of Kin to the dece'd William and Esther
had dyed Intestate And likewise to a probate of the Will.
All that Estate Esther had as Ex. Ex. of w*ch ye Property
remained unaltered at her death She might dispose of by Will
Notwithstanding her Coverture, And the Ex*tor appointed by
her is legally intituled to a Probate of Such Will.
I apprehend the Power of granting Probates and Adm'tions
to be given the Gov'r of thesev'al Plantacons and a probate
granted here would be of no force in those Parts. But it will
be proper for the Ex' tor to apply again to that Court w*ch has
Jurisdiction in those Parts and pray a Probate And in Case the
Judge upon repeated Application [5] refuse to grant him such
Probate he may appeal to his Majesty in Council and will in my
Opinion find relief there
Humphry Hinchman
Drs. Commons March 8th 1717
[Note by W. G.] (These Opinions are published in North Carol. Law Repos.
23-25.)
CASE STATED BETWEEN PHINEAS BOLT AND ISHAM RAN-
DOLPH WITH S'R ROBERT RAYMOND'S OPINION THEREON
A. a Merchant in London ships on board B. bound for Pensil-
vania Goods to a considerable value and takes a Bill of Loading
of C. the Master, to deliver them safe at the Port of Philadelphia
the dangers of the Seas excepted to D. or his Assigns.
B6 VIRGINIA COLONIAL DECISIONS
The Ship arrived safe in the River Delaware and in going up,
run aground about sixty Miles from the Town of Philadelphia.
To save the Ship they were obliged to take out great part of her
loading, and after she had layd Nine Days, got her o& and
carryed her up the River within twenty Miles of Philadelphia.
C. the Master thinking it dangerous to go further gave D.
Notice thereof; Upon which D. requested him to send his Goods,
w*ch were still on board, up to Philadelphia C. accordingly put
them on board his long boat & sent his Chief Mate, Boatswain
and Three other Men to take Care of 'em
About ten Miles on this Side Philadelphia, they met with a
sudden Storm of Wind and as they were sailing right before it,
the Sea running very high, the long Boat pitched her head
under Water, and immediately before they could haull down the
Sail, She filled and sunk. The Chief Mate was drowned and a
great part of the Goods lost.
The Master rec'ed Freights for the Goods in London w*ch was
about fifty Shillings, And the Value of the goods that were lost
was about Three hundred pounds.
Q. 1st. Whether the Ma*r or Owners are chargeable with any
Damage that may happen to Goods rec'ed on Freight after they
are out of the Ship. And whether the Ma'r's Contract is not dis-
chargd by a delivery of the Goods at the Ship Side.
The Ma'r is bound by his Bill of Loading to deliver the Goods
took in at Freight at the Port mentioned in the Bill of Loading
safe Danger of the Sea excepted, And therefore I am of Opinion
the Master is not discharged by the delivery of the Goods at the
Ship Side, if nothing more was in the Case.
Que. 2d. If the Master was not obliged to send the Goods up.
Whether his Sending the Goods by his own Boat and Men
[6] by the Order of the Owner of the Goods, is not the same,
as if he had delivered *em to any Waterman by his Ord*r
I am of Opinion that the Ma'r is answerable for any Accident
that might happen to the Goods by the Carelessness or
Negligence of his own Boatmen, he being originally liable
on the Bill of Loading & there being no P.ticular direc-
tions to whom they should be delivered to be brought up
if there had a delivery by the Master to such P. son would
have discharged the Master.
Que. 3d. If the Ma*r's Contract should not be discharged by a
delivery at the Ship Side : Whether he is chargeable without a
BARRADALL'S REPORTS B7
Neglect of the Sailors with the loss of the Goods occasioned by
a Storm?
I am of opinion upon the whole Circumstances of this Case
That since the Ma'r was ordered by D. to send the Goods and
the Accid't hapened not by any Neglect of any P.son but by a
Storm that the Ma'r will not be liable to answer for the Loss
of them?
Rob. Raymond
Lincolns Inn July 16th 1716
Afterwards Phineas Bolt brought his Action in the Kings
bench ag't Isham Randolph and declared upon the Bill of
Loading. And at a Tryal before the Lord Chief Justice Parker
the Case appearing as it is above stated His Lords'p directed
the Jury upon the General Isue to find for the Deft Randolph
w*ch accordingly they did but the Pit. suffered a Nonsuit. . .
Trinity Term 3d. G. R.
Comon Serj't Dee being of Council for the Deft, and Serj't
Cheshire for the Pit.
[Note by W. G.] ( The foregoing opinion, without what is here added about
an action and trial is published in North Carol. Law Repos. 25-27.)
CASE STATED BETWEEN MR. MICAJAH PERRY & RICHARD
PERRY & THE EX'TORS OP COLL'O WILL'M RANDOLPH
WITH THE OPINION OF SR THOS. POWYS, S'R JOHN
CHESHIRE. S'R ROB RAYMOND, S'R W'M THOMPSON KING'S
SOLL'R GENERAL & MR. REEVES THEREON
A. a Merchant beyond the Seas in Virginia, began to import
into that Country Sundry Goods & Merchandizes from England
about the year 1682 And employed B. a Merch't in London as
his Agent and factor to transact his Affairs here, in buying
Goods and disposing of Tob'co and other Comodities w*ch he
remitted in considerable [7] Quantities every Year and allowed
B. the customary Comissions & Advantages in buying and Sell-
ing.
About the Year 1687 A. consigned to B. a Quantity of Tob'co
drew some Bills of Exchange and directed Goods to be sent him,
to the Value of 800;^' or thereabouts. Expecting by a moderate
Computacion, his Remittances that Year would have amounted
at least to that if not more. But it hap'ned either from the
Mismanagm't of B. or the sudden Fall of that Comodity, that
on making up the Accompts B. made due to himself a Ballance
B8 VIRGINIA COLONIAL DECISIONS
of ^1000. ... A. continued a large trade after this and still
comitted his AfEairs to B. he consigned him great P.cels of
Tob'co and other things every Year for several Years, but on
the Credit of his Consignm'ts drew some Bills of Exchange and
gave fresh Orders for Goods, w*ch were gen'ally answered, So
that there was an open nmning Account betw'n them. And A.
by Losses, Hardships in Trade & other Misfortunes continued
in Debt Sometimes more, Sometimes less, And at the time of his
Death w*ch was in the Year I71I, owed B. ;t700.
During all that Time B. charged Interest upon Interest for
;f LOGO. As a Ballance settled by himself, without regard to the
Subsequent Trade. The Ex'tors of A. discharged all that was
really due on a Set 'led Ballance and more. And refuse to pay
the Interest or any Part of it. The Testator never having
promised but always refused to pay it. B. has comenced a
Suite at Law for the Interest ag't the Ex'es of A. w'ch he has
summed up to £2500,
Que. Whether as this Case is, an Action can lye for Interest
on an implyed Assumpsit in Law without a positive Promise?
If upon an Accompt made up between Merchant and Mer-
chant, or between a Merchant and his Factor, there be a Bal-
lance coming to one of them, and a Subsequent Trade is con-
tinued and an open dealing between them & running Acct's as
before, I never understood That Such a Ballance would carry
Interest, unless it was so agreed between the Parties: But how
the Fact will come out in this Case upon the Evidence to the
Jury I cannot tell.
Que. 2. Granting that there was a Ballance due or a Stated
liqmdated Account and no Subsequent Trade. Whether Inter-
est can be recovered at Law without a Reservation or the
Express Agreement of the Parties?
If an Action be brought for a Sum certain, reduced & Set'led
upon an* Accompt Stated and no Subsequent dealing is between
the Parties, the Jury may and gen'ally they do give Interest
under the Word Damages for such stated S\mi, Causa De ten-
tionis &c. But there is no Colour for Interest upon Interest
and damages being uncertain and in the Breast of a Jury they
will be governed [8] by the Circumstances of the Case, w*ch will
depend upon the Proof being Matter of Fact.
Tho. Powys
19 Nov'r 1717
BARRADALL'S REPORTS B9
Serj't Cheshire to the 1st Que.
In Case A and B have continued a constant Intercourse and
the Ballance due to A has been by the Remittances of each
succeeding Year, been altogether or in a great Part cleared,
That will be such a Current Way of Dealing as will keep the
Account open and make Demand of Interest unreasonable for
each Years ballance, Especially since B. had Comission and
other good Advantages by A/s Implo)mient of him unless A.
had in some subsequent Account wherein B. had included
Interest submitted to that Ballance w*ch (the Case says) he
always refused to do.
To the 2d Que
Where a Debt has arisen for Money lent or on Acc't stated
and that Debt has been often demanded and a long time due &
unpaid A Jury will Sometimes allow the Pit. some Interest on
the Damages. But where the Debt arises upon mutual dealings
and there is no Account stated but it appears upon the closing
of a current Account, that one is Debt'r to the other I think it is
not usual nor reasonable to allow Interest because till the De-
mand was thus adjusted it remained in uncertainty
Inner Temple Jo: Chesshyre
2d Nov'r 1717. -^
S*r Robert Raymond to y'e 1st Que.
I am of Opinion in an Action at Law (if y*e Principal Sum is
admitted to be rece'd) B. can't recover the Interest on an
implyed Promise.
To the 2 Que
I don't know that Interest at Law has been allow'd on a
stated Account, but 'tis every day allow'd in such a Case in
Chancery.
Rob. Raymond
Lincolns Inn 9 ber 6. 1717
[9] S'r W'm Thompson to the 1st Que.
I conceive no Action at Law will lye for this Interest nor will
a Court of Equity allow Interest as this Case is stated, It seem-
ing to be a continued running Acct. & though the Ballance
might be on the side of B. one Year more than other Yet unless
that was a Stated Ballance &'the Account as to that Sum
BIO VIRGINIA COLONIAL DECISIONS
settled & agreed to by A. the Continuance of Remittances on
both Sides shall make the whole an open account for any part
of which no Interest shall be allowed.
To the 2d Que.
If an Account be stated it does not of itself in Point of Law
carry Interest but a Jury will have regard sometimes to the
long with-holding of Money & give Interest in Damages though
if excessive a Court of Equity may moderate Since the Party
might have brought his Action at Law as soon as he pleased for
the Principal after the Account stated, though the Circum-
stances of a Case (as the Continuance of Trade between 'em)
may account for not being so strict and it may be reasonable
that the Party should have some Interest All w*ch a Court of
Equity will consider, but this only in the Case of an Account
settled and ballanced and no Trade continuing after w'ch does
not seem to be this Case, but if it should prove so, then I think
a Court of Equity as I say will have some regard to Interest
and the subseq't Remittances shall be set of one against another.
W'm Thomson
2d of NovV 1717
[Note by W. G.] (See post 30)
Mr. Reeve's to the 1st Que
I conceive upon this Case as it is Stated, no Interest is due,
there being a running Trade between them & no Account
Stated, but if there were an express Promise it would be other-
wise.
To the 2d. Que.
If the Account were stated in Writing, I do not see why a
Jury might not consider the Interest in Damages when the Party
hath been long out of his Money.
Tho Reeves
Nov'r 4th 1717
[10]
THE OPINION OF MR. DUNCAN DEE COMON SERGT OP
LONDON ON THE FOLLOWING CASE
Thomas Pannil & John Prosser Surveyed 2200 Acres of
Land upon Matapony Swamp and at the same time made a
Division by a Line of marked Trees & a Plat w'ch Mr. Buckner
says was made by the Surveyors that first surveyed the Land
BARRADALUS REPORTS Bll
for Pannil and Prosser, they never took out any Patent for this
2200 Acres of Land but some time after makes another survey
beginning at the same Place and takes in 5200 Acres of Land
and some time after John Prosser made a Will & thereby devises
in the Words following
I give to my Two Sons Jointly Roger Prosser and Anthony
Prosser a Tract of Land lying on Matapony Branches containing
1100 Acres to. them and their Heirs forever, the Said Land to be
equally divided between them when the Eldest of them comes of
Age. And in Case they dye without Issue then to fall to the
surviving Brethren but not that this shall be any Barr to any
of them to hinder them from Selling their proper Inheritance.
Before the Two Brothers made a Division y'e Youngest Son
of the Two dyed and left a Son w'ch is now come to Age and
hath sold his Right to T. and the Eldest of the Two sold his
Right to B. and soon after he dyed
Que. Whether that Division between Pannill & Prosser with-
out any Record or Evidence of such Division nor any other
Way to prove it but by that Plat w*ch B produces and a line
of marked Trees in that Part of y *e Patent of 5200 Acres that
lye in the same Place be sufficient to give Old Prosser a Title
to Will that Land away — And if Old Prosser had a good Right
to will it — Whether the Heir of the Youngest Son (notwith-
standing there was never any Division between the two Brothers)
hath not good Right to an equal Part with B.
Thomas Pannil outlived John Prosser and made his Will
wherein he gives to Catherine his Wife & his 3 Children W*m,
Mary & Isabell and to the Child his Wife was then ensient with
All his Land &c. to them and their Heirs forever to be equally
divided. And afterw'd he says I give to Anthony Prosser A
Tract of Land lying on Matapony Swamp w*ch Land was taken
up between his Father & myself in Copartnership the said Land
to be divided between him and my Children. And Anthony
Prosser is dead and Isabell Pannil also the first leaving a Son,
the last a Daughter.
Que. Whether that Son and Daughter shall not inherit the
Parts of their Father & Mother And what Part Prosser has right to?
Upon Perusal of the Patent to Mr. Pannil & Mr. Prosser and
of their respective Wills I am of Opinion That Pannil and
Prosser were [11] Jointenants of the 5200 Acres And the marking
B12 VIRGINIA COLONIAL DECISIONS
out the 2200 Acres before any Grant of the Same signifyed
nothing but an Intencon. at that Time to make a Division but
could have no Effect they having no Estate to divide till the
Patent passed for the whole 5200 Acres together And after the
Patent there is nothing done that shews any Intention to make
a Division or destroy the Jointenancy and then the whole came
to Pannil and his Heirs by Survivorship & nothing passed by
Prosser's Will. So that to find out the Title We must look into
Pannil's Will.
It is not Stated in the Case Whether the Testator Pannil had
any other Lands than those he had Jointly with Prosser, But
yet in my Opinion that Matter will make an Alteration in the
Case; for all Parts of a Will must take Effect if possible.
Now if he had other Lands The first Devise in the Will may
have Effect by passing these other Lands to his Wife & Children
and their Heirs as Ten'ts in Com'on. Each of them and their
Heirs being intituled to a fifth part of such other Lands And
then all the Lands at Matapony will pass to Prosser and the
Children as Ten'ts in Common in Fee Simple. That is to say To
each of them & their Heirs a fifth part. But if Pannil had no
other Lands but those at Matapony I am of Opinion that both
Clauses of the Will must be construed as if Jo3med And then
the Wife — Children and Anthony Prosser will All be Ten'ts in
Com' on in Fee Simple and Each of them and their Heirs intitled
to one Sixth Part.
So that if there were other Lands, Isabella is entitled to one
fifth of these other Lands by the first Devise and to one fifth
of the Lands at Metapony by the latter Devise & Prosser to
one fifth of Metapony. But if Pannil had no other Lands but
those at Metapony Then I am of Opinion that they are only
intituled Each to a Sixth Part of those Lands.
The Death of Anthony Prosser before Division makes no
diflference It being by the Will a plain Tenancy in Com'on & his
Share did not survive but descended to his Heir The Difficulty
in construing the Will lying in the determining what land or
propocon land passeth by the Will to Each P'son, not in deter-
mining w't Estate Each Devisee hath in the Land w'ch passeth
to them by the Will. Duncan Dee
Jan. 14th 1719
[Note by W. G.] (The foregoing opinion is published in North Carolina Repos.
27-30.)
It
ft
BARRADALL^S REPORTS B13
[12]
CASE OF MR GREEN OF GLOUCESTER W'TH SEVERAL
OPINIONS THEREON
King Charles the Second by Letters Patent bearing date
y'e 10th day of Feb'ry 1662 Granted 1100 Acres of Land
Scituate in the County of GloucV in Virginia to Ralph
Green and his Heirs forever. This Ralph Green had
two Sons Ralph & Robert; Ralph the Eldest had one
Son Thomas; Robert the Second had one Son, Ralph,
who dyed in the life Time of his Father and two Daughters
Eliz'a and Mary.
Ralph Green the Patentee in his life time made a Deed in
these Words ** Bee it known unto all Men by these Presents,
That I Ralph Green Gent, of the County of Glouc'r with Con-
sent of my Wife Elizabeth Do hereby freely give dispose and
** alienate from me, my Heirs, Ex'tors adm*ors or Assigns unto
** Robert Green my Son the Neck of Land whereon he now
" liveth commonly called by the Name of my New Quarter con-
" sisting of about 1150 Acres to him the said Robert Green his
" Heirs Ex* tors Adm'ors or Assigns And I do further Warr*t
** and affirm this my Deed of Gift to be of as much Force and
** authentick as the Law can make it or as any Deed or Deeds
" of Gift are usually made, it being always provided that the
" said Robert shall not without Consent of his aforesaid Father
** solely nor to his own proper Use enjoy Possession of the said
" Land till after his Father's Death In Witness whereof I have
'* hereunto set my Hand & Seal this 8th day of Feb*ry 1671
** in Presence of us Ralph Green Test James Dunbar Leonard
** Chamberla5me.
In the Year 1689 after the Death of the said Ralph Green this
Deed was proved by one of the Witnesses in a Court of Record
and according to the Custom in that Country.
But Ralph Green the Patentee after the Date of this Deed
made his last Will and Testament in Writing w*ch bears Date
the 5th day of March in the Year 1681 And thereby did devise
the same Lands in these Words, " Item I give to my Son Robert
Green, my Land, he now lives on during his Life and after his
Mortality, then to his Son Ralph Green and his Heirs forever,
And in Case of their Mortality Then to my Son, Ralph Green
and his Heirs for Ever.
Robert Green the 2d Son as seems by this Will was
B14 VIRGINIA COLONIAL DECISIONS
in Pos'sion of the Land in his Father's Life time, and died
possessed. After whose Death, his Dau*rs & Coheirs Mary &
Eliz'a entered.
Ralph Green the Eldest Son in the Year 1693 brought his
Action of Ejectment against the said Mary and Eliz'a who
pleaded in Barr "That Ralph Green their Grandfather long
before the Time when &c. was thereof lawfully Seized in his
Demesne as of Fee and being so Seized he the said Ralph for
the natural Affection w'ch he bore to his Son Robert & to
advance him [ 13] in a Marriage then intended & afterwards
Solemnized betwixt the said Robert & one Mary Pricket did
freely alienate and give the Land wherein &c. to his said Son
Robert & his Heirs forever by Deed under his Hand & Seal
dated the 8th of Feb'ry 167| — That the said Robert
entred and was thereof Seized & dyed so seized leaving the
said Mary and Elizabeth his Dau'rs & Coheirs — After whose
Death the said Mary & Eliz'a entred peaceably &c. Without
that &c. — The Pit. replyed "That the said Ralph
Green was a Layman and not lettered and that the
Deed was never read to him, but was declared to him
as a Deed to take Effect only in Case he should dye
without making any Will, and so the said Deed or Writing
was not the Deed of the said Ralph — And Thereupon
Issue was joyned and the Jury found for the Defts. That
it was the Deed of the said Ralph Green.
About the Time of this Tryal, Sev'al Depositions were taken
in P'petuam ret memoriam, relating to this Deed, and it was
proved by one Witness Mrs. Vicaris That Ralph Green came
to the House of Mrs. Vicaris Mother to the said Mary Pricket
and called for the said Mary and said to her when are my Son
and You to be married, I have given him a firm Deed of Gift for
the Land he lives on — .Then Mrs. Vicaris asked him If he had
acknowledged the Deed to him in Court. He answered No but
that he would do it at any time; And she asked him this
because Mr. Pritchet in his life time had refused his
Consent to the Match unless Mr. Green would Settle some
Land upon his Son — And after the Marriage Mr. Green
took the said Mary (she then being upon this Land) and
said Here is a House & Land for thee, thou shalt never be
turned off, for I have given this Seat to my Son Robert &
his Heirs for Ever.
BARRADALL'S REPORTS B15
Leonard Chamberlasme one of the Witnesses to the Deed
Swore That he was by when there was some discourse between
Mr. Green and his Wife concerning this Land and She desired
him to make a Deed of Gift to his Son Robert of it w*ch he then
refused being in Drink, but the next Morning Mrs. Green told
him She had brought the Old Man (her husband) into a good
humour, And sometime after Mr. Dunbar wrote this Deed and
Mr. Green after it was read, Signed, Sealed & delivered it as his
Act and Deed and gave it to his Wife to Keep for his Son Robert.
But another P'son swore That Mr. Green Some time in the
Year 1685 offered to Sell him Part of his Land Upon which the
Dep*t told him he thought he had no Right to the Land since
he had given it by Deed to his son Robert. He made Answer,
That Deed signifyed Nothing, for he had never acknowledged it
in Court And besides it was such a Deed that could not take
Effect unless he dyed without a Will, but he had power to give
it to whom [ 14] he pleased by Will — The Dep't replyed there
was no such Condition in the Deed for he had seen it, and it was
an absolute Deed of Gift — Mr. Green then bid this Dep't go to
his Son Robert and fetch the Deed which he did and when it
was read he said he never intended any such Deed and seemed
in a great Passion with his Son, Upon w'ch his Son told him
he knew nothing of it, the thing being transacted without his
knowledge
Thomas Green the Son of Ralph the Eldest Son brought
Suit about 14 Years agoe
Q. 1. Whether this Deed he sufficient to pass those Lands
& how it shall operate. Or Whether by the Proviso, Robert's
Estate doth not comence in futuro And if so Whether in that
respect the Deed be void?
I conceive that this Deed may well operate as a Cov't to stand
Seized to the Use of the Father for life, and after his decease
to the Use of Robert his Son and his Heirs. And since it can
have no eflEectual Operation any other Way than by way of Use,
The Judges (where there is a good Consideration as here of a
Younger Son) have strained to give the Deed an useful Opera-
tion and not to make void as a Comon Law Conveyance for
want of a requisite Execution &c.
Q. 2. What Estate Robert had by the Will of his Father?
I think the Use (as is above observed) may be to the Father
B16 VIRGINIA COLONIAL DECISIONS
for Life, After to the Use of the Son in Fee or to the Son in
Fee, cloathed with a Trust for the Father for Life, in point of
Benefit and Enjo5nn*t in case he required it
Q. 3 Whether Thomas Green the Grandson and Heir of the
first Ralph be barred by the long Pos'sion of those who hold the
Land, And if not. What Ac'con he hath to recover?
His Title is no better than his Fathers was and by the Young'r
Son's death in Pos'sion and the descent cast and the Con-
tinuance of Pos'sion ever Since in that right The Grandson is
barred to bring any possessory Action, Ejectment or other &
even any reall one (as I apprehend)
Jo: Chesshyre
2d FebV 172>^
Mr. Reeve to the 1st Que.
I am of Opinion That the Deed will be sufficient to pass the
lands from Ralph Green the Patentee to his Son Robert in Fee
And that it will operate by way of Covenant to stand Seized.
The Proviso that Robert should not have the Pos'sion to his own
use during his Father's life without his Consent is a very Good
one [15] but will not in my Opinion vitiate the Deed so as to
make it void And it appears by the State of this Case that he
had his Father's Consent & enjoyed the Estate during his
Father's life.
To the 2d Que.
If Robert's Estate were to depend upon Construction of his
Father's Will I conceive he would take only an Estate for life
but the Remainder limited to his Son Ralph I take by Construc-
tion of Law to be but an Estate Tail, the Estate being devised
over for want of his Heirs to his Uncle Ralph who would be his
Heir if he had no Children of his own.
To the 3d Que.
I think Thomas hath no Title to this Estate, but if he had, in
Case no Entry hath been made within twenty Years he will be
barred of his Ejectment by the Statute of Limitations, And I
know of no other Action he could have unless it were a Writ of
Right.
Tho. Reeve
Feb'ry 1727
[Note by W. G.] (These opinions are published in North Carol. Law Repos.
309-314.)
BARRADALL'S REPORTS B17
MR. PIGOT OF THE MIDDLE TEMPLE HIS OPINION
23 November Bence Dowsing & Martha his Wife having
1693 Surrend'red All their Messuages & Lands
held of three Mannors in the County of
Suffolk to the Use of Samuel Collet & His Heirs under Condition
if they paid Collet 862 lb. 10. at the several daies of payment
therein mentioned then the same to be void otherwise in full
force, and the money not being paid Collet was admitted to
him & his Heirs.
23 August At a Court then held Collet surrendered the
1694 premise into the hands of the Lord to the Use
of himself & Hannah his Wife & their Heirs &
Assigns for ever.
13 January Collet & his Wife then surrenderd the Premises
1703 to Henry Hammond & Catherine his Wife
for their lives & the life of the longest liver
of them Remainder to the Issue Male of Henry & Catherine &
for want of Issue Male Remainder to their Issue Female Re-
mainder to the right Heirs of Henry forever. Hammond & his
Wife have Issue a Son.
30 Tber 1714 Hammond & his Wife Surrenderd the premises
to Anne Rivet for securing tW Paym't of 315;^
at the times therein mentioned.
April 5th 1715 A Recovery was suflEered of the said Copy hold
premises by Hammond & his Wife to the Use
[16] of Hammond & his Wif e & their Heirs.
18 May 1716 Hammond & his Wife were admited accordingly.
1 July 1716 Hammond & his Wife surrendered the premises to
Thos. Possford & his Heirs for securing the paym't
of 630;^ at the days & times therein mentioned.
Dowsing the Heir at Law of the first Mortgagor comes &
claims the Equity of Redemption & says his Father never
Released his Equity of Redemption in his Lifetime which is
believed to be true & Possford the last Mortgagee is willing to
take in Dowsings Title to the Equity of Redemption in order
to secure himself.
Q. If notwithstanding the length of Time since the first
Mortgage, Dowsing has not a right to redeem the same upon the
paym. of Principal & Interest Exclusive of Mrs. Rivets Mort-
gage?
B18 VIRGINIA COLONIAL DECISIONS
1. There is not any fix*d time in Equity that forecloses a
Mortgagor & the statutes of Limitations do not extend to Mort-
gages because a Mortgage is in Natural reason only a Pledge or
Security for the Money and the Conveyance does not convey
any absolute right of property but subject to a Condition of
Redemption. The Court of Chancery has often threatened
after twenty years possession not to admit a Redemption, but
in the Case of Pye & Gorges they admitted a Redemption after
60 years So that it is the equitable Circumstance that rules every
Case in Equity: As if Dowsing was an Infant when the Title
fell to him or the like.
Q. Whether it would be adviseable for Possford to [sic] of
Mrs. Rivet's Mortgage and if he should whether he can
any way or how get possession of the premises till Hammond
is paid of or what he must do to secure himself Hammond
being insolvent?
I am of Opinion that Rivet's Mortgage is only good during
the Life of Hammond for by the Surrender 13th of January 1703
the Lands were surrender'd to Hammond & his Wife for their
lives remainder to their first Son in Tail, Now tho' there were no
Trustees to preserve Contingent Remainders Yet there was a
Freehold in the Lord that preserves the Estate for the first Son
of Hammond & his Wife & when Hammond & his Wife
die their Son will have the Estate: therefore as the Case
is circumstanced I am of the Opinion the safest way for
Posford is to come to an Agreement with Dowsing & then
by consent let Dowsing bring a Bill against Hammond his
Wife & Children & Rivet & Posford.
[17] But there is no getting Possession because they all claim
under Collet who had the legal Estate well vested in him & neither
Dowsing or any claiming under him have any Relief but in
Equity. Rivet & Posford both claim under Hammond's Title,
and Rivet's Security being prior She will prevail against Posford
so that there is no way to make Posford secure but a Decree
since he is subject to the Demand of Hammond's Son, Rivet &
Dowsing.
Nath'l Pigot
Middle Temple 5 March 172j
Doctor Paul's opinion on a Case sent from Virginia in 1724. [Different hand-
writing and ink from the general MS.]
1st. A. has unadvisedly marry 'd B. his late Wife's Sister tho*
BARRADALUS REPORTS B19
he has Children by the first and is threatened with Prosecution
in the Eclesiastical Court. He wishes to be informed how far, &
by whom, most properly, he may be proceeded against & tem-
porally affected thereby. Or, whether a Prohibition will not
lye to remove it to common Law?
The Marriage solemnized between A. & his Wife's Sister may
upon due Proof be annul'd by the Eclesiastical Authority, and
the Persons separated by the definitive Sentence & Judgment of
thef A. Bishop or proper Ordinary of Place where the Parties live.
A Prosecution may be commenced by any Person, that can give
Security to pay Costs, in Case he fails of making a legal Proof.
A Prohibition will not be granted to remove it to common Law.
2d. Whether by the present Laws of England, corroborated
by noted Precedents or judged Cases 1 of which it is desired the
last may be instanced 1 such Marriage can be disannul'd or the
Parties separated, & how far their Issue may be affected thereby.
And whether there be any probable Method of Defence, or Way
to prevent Molestation?
By the present Laws of Great Britain a Man can't marry with
his Wife's Sister for the same is contrary to the Statute of y'e
24, H. y'e 8th Chap: 22. By that, it is particularly enacted,
that none shall marry within y'e. Degrees prohibited, of
which Wife's Sister is one menc'oned in the Statute. And all
Separations from such Marriages shall be good & valid; And
after such Sentence as the Law directs, the Children bom in
such Marriage will be illegitimate. I know no Defence that
can be made against a legal Evidence of the Nearness of Kin &
a Marriage solemnized thereupon.
Mr. Edisbury was separated in the A. Bp. of Cants Court from
his Wife, she being Sister to his Wife, & all his Children by
her we [sic] pronounced illegitimate.
3dly. Whether if no Prosecution should ensue, during the
Life of the Party's, ye Children of the first Wife may not after
the Father's Death, Barr any Claim of those by the Second to
their Share in [18] their Father's Estate by alledging the ille-
gality of the second Marriage. And whether the Widow will
be quietly allowed her Dower or Widow's Right?
If there shall be no Prosecution & Conviction during the Life
of the two Parties mentioned in this Case, then y'e Children by
the second Wife will obtain all legal Benefits & the Wife will
have her Dower. For Marriages, within the Degrees afore-
B20 VIRGINIA COLONIAL DECISIONS
menc'oned are in Law deem'd voidable only, not actually void.
And Proceedings, after the Death of one of the two partie's
married as aforesaid can't be commenc'd in Order to annul
the Marriage, and make the Children illegitimate.
J.Paul
Drs. Corns Sep'r 4 1724
[Note by W. G.] (This opinion is published in North CaroL Law Repos. 424-6.)
DR. STRAHAXS OPIMON ON A CASE SENT FROM CAROLINA
IN 1724
1st. A. has an Inclination to propose Marriage to B. his late
Wife's Sister, by whom he has Children but finding her within
y'e prohibited Degrees of Arch-Bp. Parker's Tables, he wants
to be informed, how far Disobedience to them can temporally
affect him; And particularly, Whether by the present Laws of
England corroborated by noted Precedents & judg'd Cases, the
Marriage when consummated, can be disannul'd & the Party's
separated and how far their Issue may bfe affected thereby?
I am of Opinion that such Marriage may be disannul'd after
Consummation & the Partie's separated; And the said Marriage
being null and void from the Beginning, it is a necessary Conse-
quence that the Issue thereof, must be look'd upon as Illegit-
imate.
2dly. What Prosecutions at Law he may be in Danger of, and
the utmost Penalty's he may suffer.
He is liable to be prosecuted in y'e Spiritual Court for trans-
gressing the Laws and Cannons of the Church, by contracting an
incestuous and unlawful Marriage, & may be enjoyn'd to do
publick Penance for y'e Same.
3dly. Whether after he has once suffer'd he may for the
future be molested by Law, upon Account of such Marriage?
If he continues to cohabit with the Woman he will be still
liable to farther Prosecution ; And if he does not desist from such
Cohabitation, after due Monition from his Ordinary, he will
incur y'e Censure of Excomunication, with all it's Effects both
spiritual & temporal.
Will. Strahan
Drs. Coms Aug'st 18th 1724
[Note by W. G.] (This opinion is published in North Carol. Law Repos. 426-9.)
BARRADALL'S REPORTS B21
[19] CASE
MR. MEAD'S OPINION ON A CASE SENT FROM VIRGINIA I N
1722
James Williamson Merchant being resident in Virignia, by
Deeds of Lease and Release, dated respectively the 19th
and 20th Days of November 1655, mortgaged an Estate which
he then had in England, in Fee to Thomas Cox for 3201b Sterling,
but whether the Equity of Redemption has heen released or
foreclosed by a Decree is not known. Mr. W'm Ball Grandson &
Heir of the Mortgagor apprehends that the Principal and Inter-
est due upon the Mortgage is fully or very near paid & satisfied
by the Perception [sic] of Profits & would therefore redeem the
Mortgaged Premises.
1st Q*r. Supposing the Equity of Redemption not to be released
or foreclosed, will a Court of Equity decree a Redemption after
such a Length of Time?
I apprehend that after such a length of Time a Court of
Equity will not decree a Redemption, unless the Heir at Law
of the Mortgager can shew, that by Reason of Infancy's in the
Heir at Law, a Redemption hath been neglected: and I take it
that y'e Court will even in such Case, not do it, unless it can be
made appear that at the Death of the Mortgager, the Heir was
an Infant or under some Disability by being abroad, or Insanity
or some Disability of that Nature: and even this will depend
upon the Time w'ch the Mortgager lived after the Mortgage;
for if he lived above twenty Years after the Mortgage ent'red, I
apprehend that a Court of Equity would not now decree a Re-
demption.
2d Q'r. If the length of Time should not be thought sufficient
of itself to extinguish the Equity of Redemption, will not both
the length of Time & a Decree of Foreclosure, (in Case such
Decree has been obtained) absolutely preclude Mr. Ball from
any Right to redeem or will Mr. Ball be entitled to a Redemp-
tion, notwithstanding the Length of Time and a Decree of Fore-
closure together?
If any Decree of Foreclosure hath been obtained Mr. Ball as
Heir at Law to y'e Morgager will be thereby absolutely pre-
cluded from any Right of Redemption.
Sam: Mead
26th Dec'r 1722
[Note by W. G.] (This opinion is published in North Car. Law Repos. 423-4.)
B22 VIRGINIA COLONIAL DECISIONS
[20] A Copy of part of a Letter wrote by Col'o. Randolph on
Receipt of our Letter and Account Current dated the 16th
December 1687 where the Ball, due to us was 973-13-5 And
before we had charged him with any Interest but at the foot
of this Accoimt was wrote Interest till repaid. And from that
Day we charged him Interest & for 10 years or more he never
took any Notice of it.
Virginia, April 14th 1688.
I rec'd your Acc'ts of a very bad Market last year, and find
the Ball, to be much higher than I expected but however must
submit to Providence I am also sensible of the jf 100 drawn P.
Cap't. Wynn for my Barbados Goods which I find not brought
to Account so that the Ball, must be so much more upon all
which Considerations and that y'e Acc't might not run higher
(the Interest thereof being considerable) I have inclosed an
Invoice of Goods for next Year as small as I can make it if I
intend to do any Thing in Trade.
Q'r. Whether the Ex'rs or Adm'rs of Col'o. Randolph shall not
be obliged to pay the Interest charged in the Account annually
& sent him to y*e Time he dy'd so far as his Estate will reach?
Upon a running Account no Interest will be allowed but as
this Ball, was considerable as notice was taken of that & Inter-
est charged by the Creditor and the Party himself the Debtor
does not object to it but mentions it in his Letter as a Matter
which he submits to. And it being continued to be charged in
all the Acc'ts to his Death & no Objection made by him to it I
think a Court of Equity will make his Effects in the Hands of an
Ex'r or Adm. liable to it.
W*m Thomson
16th Feb'ry 1717
[Note by W. G.] (See ante 6-9 ei infra.)
At the Council Chamber Whitehall the 20th day of July 1726.
[Notes by W. G.] (1725? See post 22.) (See ante 6-9 et supra.)
Present
Their Excellencys the Lords Justices
Upon reading this Day at the Board a Report from the Right
Honourable the Lords of the Comittee for hearing, Appeals
from the Plantations Dated the 8th of this Instant in the Words
following (viz)
BARRADALL'S REPORTS B23
"His Majesty having been pleased by his Order in Council of
the 12th of May 1724 to referr unto his Comittee the Peticon
of Appeal of Sarah Perry Widow & Extrix of Richard Perry
Merchant Deced & of s'd Sarah Perry Micajah Perry & Philip
Perry Merchants of London Ex'rs of Micajah Perry Merchant
Deced, setting forth intal^ that the said Micajah & Richard
Perry Deced, had very considerable Dealings with CoVo Wm.
Randolph of Virginia Deced, and that several [21] Accounts
of such Dealings had been transmitted by the said Micajah &
Richard Perry's to the said Col'o William Randolph deced
on which considerable Ballances were due to the said Perry's;
Toward Discharge of which Ballances the said Col'o William
Randolph in his Life Time & Mary Randolph Widow William
" & Thomas Randolph the s'd Col o Randolph's Ex'tors after
his Decease made several Consignments. But notwithstanding
such Consignm'ts there was a Ball, due in 1717 to the said
"Micajah & Richard Perry from Col'o Randolph's Estate of
24651b Is 8d which said Col'o Randolph's Ex'tors refusing to
pay the Petitioners brought their Act'n upon the Case in Vir-
ginia as Ex'tors of the said Micajah & Richard Perry against
the said Mary, William & Thomas Randolph Ex'tors of the
said Col'o William Randolph for recovering of the said 24651b
Is 8d which Account coming on to be try'd before the General
"Court of that Colony on the 24th of October 1723 Judgm't was
given therein against the Petitioners from which Judgm't the
Pet'rs appealed.
"The Lords of the Comittee pursuant to his Majesty's said
Order did on the 25th of Nov'r last, take the s'd Appeal into
Cons & upon hearing the Parties therein concem'd thought
proper to refer the Accounts in Qucon to the Exaicon of four
Merchants resident in London who having made their Reports
thereupon the Lords of y'e Comittee this Day took the whole
Matter into Consideration & having heard all the Parties con-
cem'd in the said Appeal by their Council learned in the Law
and finding that the said Judgment was erroneous do agree
humbly to offer as their Opinion to your Excellencys that the
said Judgm't given in the General Court of Virginia on the
24th of October 1723 should be reversed and Judgment entered
up for the Appellant in the sum of 24601b Damages,and that the
"said Sum should be recovered out of the Assetts of the said
' Obscure, but supposed to be abbreviation for inter alia. W. W. S.
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B24 VIRGINIA COLONIAL DECISIONS
"Coro W'm Randolph Deced and 101b Sterling Costs ont of the
"said Assetts, if the Respondents have Goods of the Testator
to that Value, if they have not the Costs to be recovered out
of the proper Goods of the Respondents.
Their Excellencys the Lords Justices in Council taking the
said Report into Consideration, are pleased to approve thereof
and pursuant thereunto to order as it is hereby ordered. That
the Judgm't given in the General Court of Virginia on the 24th
of October [22] 1723 be reversed and that Judgment be entered
up for the Appellant in the Sum of 2460 lb Dages & that y'e s*d
Sum be recovered out of the Assetts of y'e s'd Col'o William Ran-
dolph Deced & also 10 lb Sterling Costs out of the Assetts if the
Respondents have goods of the Testor to that Value & if they
have not that then the Costs be recovered out of the proper
Goods of y*e Respond'ts. Whereof the Governor, Lieutenant
Governor or Commander in Chief of his Majesty's Colony of
Virginia for the Time being and all others whom it may concern
are to take Notice and govern themselves accordingly.
Temple Stanyan
Qu. Upon this Order what Method is most proper for the
Perrys now to take in Ord'r to recover the Sum adjudged them
out of Col'o Randolph's Assetts in Virginia in y'e Hands of his
Ex'rs there.
I think it is adviseable that a Bill should be brought in the
Name of Extors of Mr. Perry to discover the Assetts of Col'o
Randolph and how they have been applied and to have the
2460 lb paid out of them And if by the Laws of Virginia real
Estates are subject to the Payment of Debts by simple Contract
it is proper that such Bill be brought against the Heir at Law
and Devisee of the real Estate as well as against the Executors
of Col'o Randolph and all others who have in their Custody any
Part of the Assetts of Col'o Randolph.
C: Wearg
31st July 1725
[NotebyW. G.] [1726? See ante 20.]
1. By an Act past in the 9th year of his present Majesty
intituled an Act for enabling his Majesty to put y'e Custom of
Great Britain under the Management of one or more Comissioners
and for ascertaining y'e Duty's on Tobacco &c. it is inter al
Enacted that after y'e 1st June 1724 no Tabacco shall be im-
BARRADALL'S REPORTS B25
ported stript from the Stalk or Stem But such Tobacco shall be
forfeited &c. put [sic] the Act.
Q'r. If by this Act or any other the Importation of Cut
Tobacco which is cut and made ready for smoaking in Virginia
or manufacturing thereof into Snuff & such cut Tobacco or Snuff
sent and imported in Great Britain can or ought to be for-
feited. . .
I am of Opinion that by the above mentioned Act of the 9th
Year of his Majesty's Reign the Importation of Tobacco, cut &
made ready for smoaking or for manufacturing into Snuff into
England is prohibited, and if imported is liable to be seized.
But I apprehend [23] that Snuff, tho' made of Tobacco, yet
being a Commodity of another Species is not by Virtue of that
or any other Law prohibited.
P : Yorke
Dec'r 31st 1725
By an Act of Assembly in Virginia a Duty or Impost of 2/s
for every Hogshead or other Cask of Tobacco ship'd on Board
any Vessel for Great Britain is chargeable upon y*e Proprietor
of such Hogshead or Cask of Tobacco.
Qr. Whether Snuff made in Virginia being subject to a par-
ticular Duty by the Act of Parliament in Great Britain &
thereby distinguished as a different Species from Tobacco can
or ought to be subject to the Impost of 2/s pr Head or Barrel in
Virginia the same as Tobacco or ought not to be exempted from
such Duty.
The Construction of this Act of Assembly of Virginia seems to
be more doubtful than that of the English Act of Parliament
above-mentioned, because there is not distinct Duty laid upon
Snuff in Virginia as there is in Great Britain. But if since the
making of that Act of Assembly, the Duty has never been levied
upon Snuff, I apprehend that it ought to be taken not to be
within the Act, provided the Snuff be compleatly manufactured
and perfected, and not only Tobacco prepared to be manu-
factur'd into Snuff.
P. Yorke
Jan : 13th 1725
B26 VIRGINIA COLONIAL DECISIONS
SIR ROBT. RAYMONDS OPINION IN A CASE SENT FROM
VIRGINIA IN 1722
CASE INT^ ILALLX3 WS I £j£(^^£ j^^ UPON SPECIAL VERDICT
John Hallows late of Rachdale in the County Palatine of
Lancaster, was seized of 2400 Acres of Land in Virginia & died
so seized, leaving Issue, Restitute his Daughter & Heir. Resti-
tute Hallows entered and intermarried with one Whiston & by
him had Issue Restitute her Daughter and Heir and died seized.
Restitute Whiston entered and intermarried with one Thomas
Steel and by him, had Issue Thomas Steel her eldest Son & Heir;
And afterwards intermarried with one Manly, and had issue two
sons by him John and William Manly And being a Widow
at her Death made her last Will & Testament in W^riting bearing
Date the 30th Day of January 1687 [24] in these Words, " I
" Give & Bequeath to my Son Thomas Steel that Tract of Land
** I now live on (y'e Land in Dispute) to him and his Heirs
** forever. Item it is my Will that my three Children with their
** Estates remain in the Hands of my Ex'r till they shall come
** of the Age of 16 Years & then to have their Estates; and the
** same Day made her Codicil in these Words "It is my Will
** that if my Son Thomas Steel die* in his Minority before he be
" of Age to enjoy my within mentioned Land, that, then my
** other two Sons, John & W'm Manly shall have the said Land
** equally to be divided between them & their Heirs forever.
Thomas Steel at his Age of 16 entered into the Lands and took
the Profits thereof, and lived till he had almost attained his
Age of 21, & died without Issue; After whose Death John Manly
entered into thd Lands and died in Possession leaving Issue the
Deft. The Lessor of the Pl't is Samuel Hallows Son & Heir of
Matthew Hallows, who was Son & Heir of Samuel Hallows who
was eldest Brother of the said John Hallows.
Q'r. What Estate Thomas Steel had in those Lands by y*e
Will of his Mother, and whether upon his dying before 21 tho'
in Possession, the Lands should go to Manly? And if the Lands
shall remain over upon Thomas Steel's dying before 21 Q*r how
his Issue could have inherited if he had had any.*^
I am of Opinion, that Thomas Steel by Virtue of the Will and
Codicil of his Mother Restitue Manly, (taking it for granted the
Will and Codicil were duly executed according to the Laws in
Virginia), took an Estate in Fee Simple, but subject to the
BARRADALUS REPORTS B27
Contingency of his dying in his Minority before he should be of
Age to enjoy the Land devised, and if he died in his Minority
before he should be of Age to enjoy it, then y*e Land by the
Codicil was devised over to John and WilUam Manly in Fee as
Tenants in common by Way of executory Devise. — Mr. Hal-
lows Title depends upon the Construction of those Words in the
Codicil " If Thomas Steel die in his Minority before he be of
Age to enjoy the Land devised," if by those Words Thomas
Steel's Death before 21 is to be understood, Mr. Hallows will
have no Title because Tho's Steel did die before his Age of 21;
and in that Case if Thomas Steel had had Children they could
not have taken this Estate; w'ch is so hard a Construction, that
it can't be imagined the Mother intended it should be so — But
if those Words in y'e Codicil shall be refer'd to the Words of the
Will [25] whereby, by the Devise that y'e 3 Children with the
Estates should remain in y'e Hands of her Extor, till they should
come of the Age of 16 years, and that then they should have
their Estates that — that was the time of Enjoyment intended
by the Codicil, then after Thomas Steel came to 16 he was seized
in Fee absolutely, and the Executory Devise over to John &
W'm Manly could never arise, but Mr. Hallows as Heir-at-Law
to Thomas Steel will be entitled to these Lands.
If upon Thomas Steels coming into Possession he had an abso-
lute Fee Simple in the Lands Q'r whether the Lessor of the Pit.
hath not a good Title.
And I apprehend this last Construction is the right Con-
struction and is inforced by its obviating that Hardship, in some
Measure, which the other Construction would introduce, in Rela-
tion to the Defeating y'e Children of Thomas Steel, because it
is not unreasonable to think that the Mother did not intend her
Son should marry before 16 and if not he could have no Chil-
dren to be defeated by the Devise over. And therefore upon the
whole, if Mr. Hallows proves his Pedigree plainly, I am of
Opinion he hath a good Title to these Lands devised.
Lincolns Inn. Rob: Raymond
Mar: 28, 1722
[Note by W. G.] (This Opinion is published in North Carol. Law Repos. 72-4 )
B28 VIRGINIA COLONIAL DECISIONS
MY OPINION TO THE CASE & QUERE'S STATED BY MR. SCOTT
MINISTER OF OVER WORTON PARISH IN
STAFFORD COUNTY
To the 1st. I am of Opinion and do conceive that every Act
or Agrem't made by a Vestry in their poHtical Capacity, & by
them so registered or entered as an Order of Vestry is binding
and obHgatory to themselves and their Successors as farr forth
as the same descends or is Umited.
2d. I am of Opinion and do conceive that if y*e Church
Warden omits his Duty after the Levy laid by the Vestry he
may be sued or if the Vestry omits laying y'e Levy according
to their Duty they may be sued.
3d. I am of Opinion & do conceive they may not (as this
Case is, because there's a greater ObHgation upon this Minister
than is usual) Neither do I conceive that the Parish is tied down
or the Vestry to allowno more than 16000 lb. of Tob'o P. annum
to y'e Minister, less, I am — Opinion they cannot do without his
Consent: The Law made in 1696 (being the last) neither one
Way or other confining either y'e [26] Vestry or Minister to
grant more, or he to take less, so I conceive y'e Agreem't of
either Party's rules the Case.
4th. I am of Opinion & do conceive that by the Continunce
of y'e Vestry so long in their Station all incidents requisite for
their QuaHfication or capacitating of them to act as such &
necessary to be done at their Entrance thereon, shall be in Law
intended to be performed & done & not be construed, deemed
or taken to be otherwise, and to be sure shall be obUgatory upon
them because the Law will not allow any Person to take Advan-
tage of his own Laches. As to the Successors I am of Opinion &
do conceive that it is obUgatory upon them too for y'e Reason
aforesaid, for if it shall be intended that they are Vestry Men
qualified (tho' no Register or Entry of their having qualified
themselves appears) by their Continuance so long; then their
Successors I conceive bound by their Acts and Agreement as I
have said in my Answer and Opinion to the first Article.
5th. Lastly as to the Case itself I am of Opinion and do con-
ceive that the Minister by the said Order is obliged & it is & will
be esteem'd in Law his Agreemt. to preach and do such Acts
on his Part as in the same is mentioned, for in a Deed %VLch
Words would amount unto a Cov't & he is as equally obliged
thereby to perform that as y'e Order of Vestry obliges them to
BARRADALL'S REPORTS B29
do theirs. The Consideration to be performed on his Side is so
extraordinary that I cannot but conceive both Law & Equity-
will justify y*e Vestry's Agreem't as to his Salary & providing
him a Horse.
Date 23d April 1713 S. Thomson A. G(0 :
A. G. Not of England, certainly: quaere whether of Virginia. Hugh Blair
Grigsby, esq. informs me that he was Stephens Thomson, the King's Attorney
General in Virginia. W. G.
1. A. makes a Will and gives a Mulatto Wench thus. I will
that my Mulatto Girl Sue remain with my Wife B. during her
natural Life and after her Decease I give her to my Son C. and
appoints B. & C. Ex'rs & makes them Residuary Legatees.
B. lives a long Time & Sue during her Life had 8 Children w*ch
B. by her Will has disposed of. Q'r 1st. Whether C. has any
Right to y'e Mulatto Girl seeing no preset Interest in him? [sic]
[27] I am of Opinion C. has good Right to y'e Mulatto Girl by
this Devise.
2d. Whether B. had a Right to y'e Issue of Sue or any Part
of them I am of Opinion (the Son not having the immediate
Property in y'e Mulatto Girl tho* I think a future Interest vested
in him by Way of Executory Devise) that y'e Property of y'e
Children as they^ were severally bom did vest y*e Wife & Son
jointly as Coex'rs & Residuary Legatees because it must imme-
diately vest in somebody. It not being disposed of by y'e
Testor. Then I think as joint'ts & no Division made, the
Survivor hath by Virg'a Law 1705 Right to 'em all If they did
not vest in them both as coex'rs & Residuary Legatees I think
they must vest in the Son there being in my Opinion no Colour
for the Tester's Intent or y'e Law by Implication or other
Rule to vest them in the Wife except as Coex'r &c.
Jno. HoUoway Virg'a
March 9th 1718
SIR JOHN RANDOLPH'S OPINION ON A CASE IN VIRGINIA
IN 1734.
[This headline apparently not in original. S.]
A. in London purchased Lands in Virginia from B. and A & D
join in a penal Bond to B. to pay the Consideration to B in
London by the first Opportunity after the Lands were put into
the actual Possession of A & theDeedswererecordedinVirg'aand
that no Delay should be made on the part of A. A Defeazance
B30 VIRGINIA COLONIAL DECISIONS
was made by A. to B that if the Land was not possessed &c.
in Months by A. then the Deeds of Release &c. from B. to
A. should be void. The Deeds were not recorded nor Possession
delivered to A until after the Time mentioned in the Defeazance
but it was occasioned by B.'s Wife who was by the Deed to
rehnquish her Dower which she refused for so long that the
Time was passed and A was obHged to pay her a Consideration
at last and then Possession was deUvered to A & the Deeds
were recorded in due Form of Law. Immediately after A writes
to B & sends an Order on D. to pay the Consideration & he also
wrote to D. to pay the Money. A having lodged the same in
his Hands for that Purpose. B did know in Time that A was
in Possession of the Land but neglected to compel D to comply
with his Bond, & never acquainted A that the Money was not
paid — but A always beUeved the Money was paid until some
time after D failed in [28] his Credit & became a Bankrupt,
Then B. having assign'd the Bond his Ass'ees demanded the
Money of A. affirming that D. never paid any part of it. A has
since paid to B's Ass'ees the principal Sum and they insist on
Interest — and my Opinion is desir'd whether as this Case is
that by B's Neglect A has really twice paid the Consideration
that [sic] can be compelled to pay Interest? And whether as
this Case is the Defeazanc as above stated & having never been
inroll'd here can defeat A's Title by Deeds that are? And upon
this Case I am of Opinion that A. must pay all the interest that
was due upon this Bond from the Time of his taking Possession
of the Land till the Paym*t of the principal Sum For tho' it
was not just in B. to keep A's Order on D. & not to let A know
that the Money was not paid, yet that Order however illy nego-
tiated could not extinguish or alter the Debt w'ch A. owed to
B. upon his Bond unless A would give up the Land & the Debt
was extinct there can be no Reason ag'st paying the Interest
which is a Favour to A. to discharge him of the Penalty. And
besides in this Case some Neglect may be imputed to A. who
should have inquired after the Order he had drawn upon D. &
when he found a Delay in y'e Paym't of it, should, have taken
other Measure. But the greatest Negligence was in D. whose
Business was to have paid y'e Money & taken in the Bond, and
as D. was intrusted by A. it is most fit for A. to Suffer by his
Management and not B. who knew he had a double Security for
y'e Money and might take Land if y'e Money was not paid.
BARRADALL'S REPORTS B31
As to the Defeazance (tho' I don't think the Want of Inrollm't
would alter the Case one Way or other) I am of Opinion when
the Pvirchase Money is paid tho* not in Time, The Estate cannot
be defeated.
J : Randolph
[29] Thomas AUaman seized in Fee of 700 acres of Land died
Intestate leaving Issue by his first Wife Judith a Daughter &
by his second Wife three sons John Thomas & William.
John died an Infant without Issue. Thomas died also in
his Infancy without Issue
WilUam lived to be of age entered & was seized & being also
possessed of some slaves & personal Estate died Intestate in
1732 leaving a wife a son Thomas & a Daughter Sara Thomas
died soon after his Father an Infant of tender years Sara died
lately being abt. 12 years old Her mother is now living. There
are no Relations of Sara on the Part of the Father but the Aunt
Judith who is but of the half Blood But there are Heirs on
the Part of the Mother
The Question is who is intitled to the Land Slaves & personal
Estate of Sara As to the Lands they are certainly escheated
and the mother being in Possession I conceive will be preferred
to a Grant of them if she appHes for one
The personal Estate (exclusive of the Slaves) which I suppose
to be only Sara's share of her Father's Estate I think clearly
must be divided between the Mother and the Aunt of the half
Blood who is the next of Kin on the Part of the Father to this
Purpose But the Mother alone is intitled to the Administra-
tion
As to the Slaves it is not so easie to determine who is intitled
to them It is however certain that the Aunt of the half Blood
cannot take them by Descent whatever Right she may have
to a distributive Part of the Value in Case they are to be taken
as Chattels
The First Question will be properly between the Heir on the
Part of the Mother & the Administratrix whether the Slaves can
descend to such Heir they descending to Sara the Intestate on
the Part of the Father
And I am of Opinion that the Heir on the Part of the Mother
can not take these Slaves by Descent any more than he can the
Lands which came from the Father It is incontrovertible in
B32 VIRGINIA COLONIAL DECISIONS
the Case of Lands that such as descend on the Part of the Father
can never resort to the Line of the Mother but shall rather
escheat as they do in this Case By the Act declaring Slaves a
real Estate they are to descend as Lands held in Fee simple
How then can the Heir on the Part of the Mother come in
Slaves indeed cannot escheat but by a Proviso in the af'd Act
are in such Case to be taken as Chattels And consequently they
must go to the Administratrix. This seems mighty clear to me
But I must observe that I have never known this Point come
in Question or do I believe it was ever yet determined in the
General Court.
If the Slaves are to be taken as Chattels in this Case there will
then be another Question whether the Aunt of the half Blood
as next of Kin to the Father is intitled to Distribution Or whether
the Mother as Administratrix be intitled to the ;<vhole.
[30] This Point is also quite new to me but upon the best
Consideration I have been able to bestow I am of Opinion that
the Aunt of the half Blood is not intitled to Distribution as to
these Slaves tho' they be personal Estate Nor to any other
personal Estate of the Intestate Sara except her Share of her
Father's personal Estate.
Upon the whole I am of Opinion that the Lands are escheated
that the Mother alone is intitled to the Administration & in that
Right to all the Slaves and that the Aunt of the half Blood is
intitled only to one half of the Intestate's share of her Father's
personal Estate.
I advise the Mother to take out an Administration to her
Daughter & also to petition for a Grant of the Lands as escheated
and that without any Delay.
Edw. Barradall
W'm'sburg 29 Mar. 1741
BARRADALL'S REPORTS B33
[31] Cases adjudged in the General Court of Virginia
from April 1733 to October 1741 taken by
Edward Barradall Esq;
[Note by W. G.] (Late Attorney General there. In Myers's copy.)
Also some Cases taken by Mr. Hopkins between October
1731 & April 1733
[Note by W. G.] (This is not in Myers's copy.)
APRIL COURT MDCCXXXIIJ
MuRD(XK V. Thornton Appeal from Stafford.
The question in this case was whether a man confessing Judg-
ment in custody is in Execution without prayer of the Pl't.
The case of Diggs and Fleming in this Court (•) was insisted on
(0 V*d*^this.Case J. K. Arguments. 73.
which was, One {sic'\ confessed judgment in .Custody and was
discharged by the County Court upon the Act for reUef of Insol-
vent Debtors The Act speaks only of persons in Execution
So unless he was in Execution the County Court had no Power
to discharge him But Adjudged the Court had Power to discharge
him and consequently that he was in Execution.
For this point see Comb. 329. that after two Terms upon filing Comon
bail tiie del. is discharged.
For the Appellant (Prt below) It was also insisted that the
Entry of the Committitur was only Form and that the Clerk
should do it of covcrse without prayer That in England it was
the meer Act of the Attorney who enter' d it upon the Roll For
the Appellee it was answered such practices would be incon-
venient for thereby the Pl't would be forced to take Execution
against the body when perhaps he had rather have it against
the Estate.
Adjudged that he was not in Execution without prayer and
so County Court Judgment affirmed.
[Note by W. G.] (Rob. Virg. Pract. 137.)
B34 VIRGINIA COLONIAL DECISIONS
OCTOBOR COURT MDCCXXXIIJ
Oct'r 20. 1733. Philip Lightfoot Esq. was sworn one of the
Council in the General Court and a Judge of the said Court
Oct'r 25. Thomas Lee Esq. was likewise sworn.
[32] Reeves ag't Waller
[Note by W. G ] ( Jeflf. Rep. 8, s. c.)
The Pl't brought an Action upon the case in Essex County-
Court for forty shillings won upon a horse race and had a Ver-
dict in his favour. In arrest of Judgment it was objected that
the Prt ought to have sued by way of petition upon the Act of
1 Geo : 2 for recovery of small Debts and for this reasonjudgment
was stayed and the Prt ordered to pay Costs
And now I moved for a Writ of Error The doubt was whether
It could be allowed the principal debt being under five potmds
And no Appeal or Supersedeas ought to be granted by the Act
of 1 Geo: 2.
I insisted that the Act did not mention writs of Error And
that the Subject was intitled to them of common right.
But the Court seemed to incline that Writs of Error were
within the Act However a Writ of Error was allowed upon the
Authority of Spotswood & Harrison's Case in this Court
In which the Court came to a solemn resolution that the Act
did not intend to exclude the Pl't from an appeal &c. but the
Deft only see the Act c 3. 8. 14.
McCarty ag't McCarty's Extors. In Chancery
Daniel McCarty being possessed of a large personal Estate
And among others of a Bond debt of ;^ 291 and Interest due from
John Fitzhugh one of the Def'ts makes his Will and after several
legacies devises the residue to his three Sons D. B. & T. and
makes them Executors but because they were under age makes
the said John Fitzhugh and the other Def'ts Executors in trust
till T. arrived to 17. This Bill was brought by D. one of the
sons and residuary Legatees against the Trust Executors for an
Account of the residue Of which J. F's Bond is charged to be
part.
I. F. Answers separately and submits whether the debt be
not extinguished by his being made Executor which he says he
BARRADALL'S REPORTS B35
believes was the Testator's intention because the Deft coming
to see him in his last Sickness and expressing some uneasiness
about his bond The Testator said if he thought any child of
his would trouble him for it he would bum it before his Face
Says he married the Testors Eldest daughter and that the testor
promised to give him as much as he gave any of his other daugh-
ters That he gave the Deft only nine Negroes in his Hfe time and
two by his will and that he gave two daughters ;^500 a piece by
his will and the Deft [33] hopes to be allowed as much out of
the bond as will make his Wife's portion the same Sayes he
employed the Testor to purchase an Estate for him which the
testor bought for himself and devised to the Complain't and
hopes that will be considered
This cause was heard upon the Bill & Answer
Hopkins for the Pl't insisted
That the Debt tho' extinguished at Law is Assets in Equity
and cited 8. E 4. fo 3. Nichols ag't Chamberlayne. Nel. 44 S. C.
3. Ch. Rep. Tlud & Rumsey Yel. Phillips ag't Phillips — 1 Ch.
Ca. 292. S. C. Finch 410 Wankford ag't Wankford 1 Salk.
299. — Dorchester ag't Webb 1 Cro: 372.
Sr. J. R. for the Deft. The testor' s intent was to discharge
the Debt by making I. F. Executor as may be Inferr'd from his
discourse with I. F. mentioned in his Answer That collateral
proof is admitted in Equity to explain a testor' s intention and
cited Lady Granville ag't Dutchess of Beaufort 2 Vern 648 & Id.
593. 736.
This rule was also insisted on He that will have Equity must
do Equity That the Deft, had a great deal of Equity against the
testor upon the several Matters disclosed and sworn in his
Answer particularly that about his Wife's portion and the Land.
The Bill was dismist
Note it seemed to be agreed by Sr. J. R. that the Debt was
Assets which is certainly a clear point And the Courts Opinion
as I took it tum'd upon the Matters disclosed in the Deft.'s
Answer.
Vide Sir J. Randolph's Argument Def. No. 42.
Nicholas & his Wife ag't Burwell's Extors In Chanc'y.
2. Hop. 89. [Note by W. G.] (Hop. 18. Rand. 101. In Myers's Copy.)
Burwell by his Will devises to the Child his wife was Enseint
B36 VIRGINIA COLONIAL DECISIONS
with if a Son £2000, if a Daughter ;^1000. when such Child
arrived at the Age of twenty one After the Testor's death his
relict was delivered of a daughter who dyed before twenty one
And this Bill was brought by the Pit. and his wife (the testor's
relict), for her part of the ;^1000 devised to the posthumous
daughter.
The Defts. Demurred because it appeared by the Complain-
ant's own Shewing the daughter dyed before twenty one and
so the legacy never vested —
Randolph for the Defts.
There is a difference where money is devised to one at such an
[34] age or when they come to such an age and where to be paid
at such age. In the first place if the Legatee dyes it is a lapsed
legacie but in the other case it shall go to the Executor or Admin-
istrator That the reason of this distinction is rather from a
complyance with the Civil Law and the determination of the
Spiritual Court that there may be an uniformity in Judgment,
than from any real difference in the nature of the thing. That
as there was no Spiritual Court here the distinction should be
exploded And that the legacy lapsed in both Cases Cited Swinb.
310. 313, Wentworth Cloberry*s Case 2 Vem 343. 2 Ch. Ca.
155. s. c. 2 Ch. Rep. 155, Godb. 182. Smell con Dee 2 Salk. 415.
Lord Pawlet's Case 2 Ch. rep- 165. S. C. 2 Vem. 366. Cave &
Cave 2 Vem. 508, Yeats & Fettiplace Id. 416, Smith & Smith
Id. 92. Carter v Blesto Id. 617. Onslow & South Eq. Ca.
Abr. 295. 296. Vide plus ibidem
But if this be not a lapsed legacie it is not paiable till the child
would have been twenty one And cited 2 Vem 283 Papworth
ag't Moore Eq. Ca. Abr. 299. 2 Vem. 199
Hopkins for the Complts.
Insisted that the distinction between a legacie given at such
an age and to be paid at such an age was exploded there being
no real difference and the intention of the testor was the same
in both cases and that the intention ought to govern He said the
legacie vested in both Cases and should go to the Extor — Cited
Sanders con Erie 2 ch. rep. 8'o 188. Luke ag't Aldem 2 Vem.
31. & 2 Vern. 199.
And sayed the Cases of Yates & Fettiplace Lord Pawlets &
Smith & Smith would not affect this Case because there the
Charge was upon land and it was to ease the heir As to the
BARRADALL'S REPORTS* B37
Objection that the Suit was brought too soon because the
(i^aughter would not have been twenty one if alive He cited Lady
Lodges case 1 Leon. 277. 278. & Sanders [(4) Note by W. G.]
con Erie Supra.
[Note by W. G.] ( Vide Ch. Ca. Abr. 209-300 that the adm'r must wait till the
legatee wotdd be of age, but if a legacy is g^ven to A. paiable at 21 and if he dies
before then to B. he shall have the Legacy presently 2 W'ms 478. Laundy vs W'ms.)
[Note by W. G.] (Not in Myers's copy.)
The Demurrer was allowed.
See Mod. Ch. Ca. 105. 106. Sayed to be a standing rule in
Equity that where a portion or legacy is to be paid at a time
to come out of lands if the Legatee dies before the day the legacy
is sunk & gone. But it is otherwise if the legacy is to be paid
out of personal Estate.
[ Vide Sir J. Randolph's Argument 1 Defts. No. 39
So where portions were charged on Lands, and if any of the
Children died before twenty two or marriage to go to the Sur-
vivors, One dies, that portion shall not be paid before it Would
have become due, had the Child lived. Select cases in Chan. 15.
[Note by^W. G.] (This not in Myers's copy.)
[35] MicoN ag't CoRBiN.
This was an Action of Account Render Persons were ap-
pointed by the Court to settle Accounts between the Parties
Who having returned an Account stated Judgment was now
prayed for the ballance found due to the Pit.
Randolph for the Deft. Opposed a Judgment and sayed the
Judgment of Auditors in account was not final. That this was
not like the Common Case where matters of Account are referred
by assent. That the Auditors had mistook their Office and
should have persued the method prescribed in the books in
Actions in this nature i.e. Where there is any doubt or dispute
to make up an issue and send it to the Court for Tryal And
cited a precedent to that purpose.
The Court overruled the Objection It having been the Practice
here to proceed in this manner and Judgment for the Pit.
[Note by W. G.] (See Rob. Virg. Pract. 76.)
StITH ag't SOANE & OTHERS.
This was an Information against the Justices of Charles
City for not keeping a sufficient Prison. The Pit. offered in
B38 VIRGINIA COLONIAL DECISIONS
Evidence the record of a Judgment in an Action brought against
him when Sherif for an Escape in which it was found by the
Jury that the Prison was insufficient And allowed by all the
Court except Grymes who thought it should be only admitted
to prove the damages the Sherif had sustained but not the insuffi-
ciency of the Prison —
The King ag't Moorb
[Note by W. G.] (Hop. 17 in Myers's Copy.) JeflE. Rep. 8. S. C.
An Information was brought against the Deft, upon the Act
of 5 & 6 Geo. 2. laying a duty upon Slaves for not transmitting
to the Collector of the duty's a List of the Slaves by him sold
imported in the ship A.
The Deft. Offered as Witnesses the Master and Steward of the
Ship to whom Mr. Attorney Objected as parties in interest hav-
ing Slaves of their own aboard But the Court seemed to think
it no Objection And sayed at the Bar if two are concerned in a
trespass and one is Indicted the other may be a Witness for or
against him And by Sr. J. R. If one is sued for any matter for
which another is also chargeable that other person may be a
Witness.
The Jury found a Special Verdict.
That the Act was passed 1 July 1732 about four in the After-
noon [36] (5) and the Ship came to an Anchor off Back River the
said 1 July about two leagues from the Shore Came into the
Capes about twelve and came to Anchor ketween seven and
eight and could have got up to York if they had had a Pilot
On the second of July the Ship got into the mouth of York on
the third to York Town and enter'd the fifth.
2 Questions were made upon the Verdict 1st Whether the
day of passing the Act was exclusive or inclusive 2d Whether
this was an Importation. The words of the Act are ** From
and after the passing of this Act there shall be paid &c. for all
Slaves imported or brought into this Colony and Dominion for
sale &c." As to the first for the King it was insisted there
could be no fraction of a day And the Act being passed the
1 July that whole day must be included And Clayton's Case 5
rep. 1 was Cited.
Hopkins for Deft, agreed there was no fraction of a day but
insisted the day of passing the Act was excluded and conse-
BARRADALUS REPORTS B39
quently this Importation was before the Act & Cited Clayton's
Case supra and the Case in Dyer 5 Eliz. 218 there cited Which
seemed to be in point.
Also cited Holt's Opinion in Rob't Howards Case 2 Balk. 625. & Lord Rocking-
ham ag't Oxenden 2 Salk 578.
As to the 2d. Insisted for the King that the Place where the
Ship Anchored 1 July was not within any port & so no Importa-
tion To which it was answered There are no ports laid out here
as in England And that coming within the Capes with an Intent
to come strait to Virginia is an Importation.
Judgm't for Deft.
[ Vide Hopkins Argument in Libro parvo. 84. 2 Hop.
[Note by W. G.] (This is not in Myers's copy.)
The King ag't Pryor.
Indictment for an Assault It was moved by the Deft, that
the Indictment might be dismissed because the deft, before the
Bill found had given his note to the prosecutor for two pistoles
in satisfaction of the Assault But the Court refused to dismiss
it because there is a fine to the King.
[37] Meggs ag't Bales Appeal from Essex.
This Case was upon a Special Verdict where it was found the
Deft promised to pay the Debt of another but no consideration
of the promise found
It was insisted for the Appellant (the Deft, in the Action)
that this was Nudum pactum & void as well in law as in Equity
& Justice — Since it was neither advantage to him that made
the promise nor loss to him to whom it was made And the Pit.
bad still his remedy against the principal since he was not dis.
charged.
The Cases cited for the Appellant were Dr. & Stud't 210. Mar.
203. Pop. 183. Cro. Jac. 207. 213. 438. 1 Ventr. 9. 27. 159 Cro.
El. 19. 703. 1 Salk. 364.
1 Vent. 6. Ba. Abr. 30. 4.
But notwithstanding all those authorities expressly in point
the Court Adjudged it a good Promise And County Courts
Judgment Affirmed.
B40 VIRGINIA COLONIAL DECISIONS
These Authorities were not denied nor one book quoted
against them. But the Argument was the common case of Mer-
chants giving credit in their Stores and who every day trans-
ferr'd one Man's debt to anothers account —
NB. There seems to me a great difference in the Cases Where
credit is given in a Store the delivery of the goods is a good
Consideration. And as to the Case of transfeiring debts there
is also a good consideration if Credit is given to the principal
for thereby he is discharged —
[W. G.] (6).
APRIL COURT MDCCXXXIV
The King ag*t McClanahan
2 Hop. 117 [Note by W. G.] (Hop. 29. in Myers's Copy) Jeflf. Rep. 9. S. C.
Debt for 3000 lbs. Tobacco on the Act 7'o Geo. 1. for refusing
the office of Sherif .
The Case was the deft, was the first of the three recommended
by the County Court A Blank Commission was sent up to the
Clerk of the County Court under the Seal with directions from
Mr. Robertson to offer the Commission to the deft, and if he
refused to put in the name of the next person recommended.
Deft, refused before the County Court and the Commission was
filled up with the name of another And whether the deft, was
liable to the penalty of the Act was the question. The words
of the Act are **That every person hereafter Commissionated
to be a Sherif and refusing Shall forfeit &c. In this Case the
deft, never was commissionated his name was never in the
Commission And so [38] he is not within the Act.
Judgment for Deft.
Note it was said the pratice of sending out blank Commissions
under the Seal was of dangerons consequence and it was not safe
for any man to fill them up.
LiGHTFOOT ag't LiGHTFOOT
[Notes by W. G.] (Hop. 30. Rand, in Myers's Copy.) 2 iHop. 121. 1 Vera.
234. Massenburg and Ash. 2 Vem. 38. Smith & Clever 2 Vera. 43. 195. Peacock
& Spooner, 1 Sal. 225. Lamb & Archer. (S. C. Cited Jefif Rep. 46.)
Francis Lightfoot by his Will devises (among other things)
as follows ** I give all the remainder of my Estate real & per-
BARRADALL'S REPORTS B41
*' sonal to my son Francis & the heirs male of his body and if
** he dye without such Issue or if there be any failure hereafter
** in the male line Then I give the same to my brother P. Light-
** foot & his heirs He or they paying to my daughter 2500;^.
** in full compensation for the same.'
The Testor's Son lived 2 or 3 years after his father dy'd young
and without issue And now a Bill is brought by the daughter
for the residue of the personal Estate devised to the son & for
the profits of the real Estate from the death of the father to the
death of the Son To which bill the deft, demurred And the great
Question was whether the remainder to P. Lightfoot of the per-
sonal Estate was good
Hopkins fr Deft. Such a 'remainder of a personal thing may
well be it being upon a double contingencie either of the sons
leaving no issue Male at his death Or if there should be after-
wards any failure in the Male line The first contingencie being
within the compass of a life the remainder on that Contingencie
is good & that contingencie has happened. He agreed the
remainder upon the second Contingencie was void And if the
Son had left Issue at his death P. L. the remainder man could
not have taken
Cited Pinbury v, Elkin. 2 Bern. 758. 766. [Other citations
illegible.]
Randolph fr Deft. The old books are that a personal thing
can't be limited but this Opinion exploded ever since the restora-
tion And now a more liberal construction of Wills is allowed
to support the testor's Intent October 1730 Edmonds vs Hughes
Adjudged in this Court But if the remainder was not good the
last words in the limitation to the deft, plainly shews the testor
intended his daughter should -have but 2500;^.
Nelson 174 2 Vem. 246. 331. Finch Rep. 116 2 Vera. 86. 151. 2 Vera 347. 758,
776, 686. [Note by W. G.] (Not in Myers's Copy.)
Sayed the Pit. by contesting the Will would forfeit her legacie.
Cited Hem v Hem. 2 Vem. 555. Id. 580.
For this point see Powell v. Morgan, 2 Vera 90, 91. 2 Vera. 668 Webb &
Webb.
But this seems quite from the Purpose
Mr. Attorney for the Pit. This remainder is not good The
[39] Son has an Estate tail by the Words of the .Will and a
B42 VIRGINIA COLONIAL DECISIONS
chattle can't be intailed Whitmore & Craven 1 Vem. 326. 2 Ch.
Ca. 167. Alice Loman's Case Poll. 37.
Demurrer allowed
See Fitzg. 314. a Case directly in Point adg'd con. And see
the Cases there cited pro & con. See also Gilb. 105. Seale v.
Seale.
Berryman ag't Booth.
A writing purporting to be a Will was found among the Papers
of the Pits. Father after his Death. It was signed by him and
three Persons subscribed as Witnesses By this he gives all his
Estate to his Wife Some time after the Date of this Writing he
has a Son (the Pit.) bom and then he declares he would make
his Will and dyed soon after this Declaration The Wife soon
after his Death proves this Writing as his Will in Common
Form and obtains a Probate Two of the Witnesses to this
Writing are dead and the third swears she does not remember
signing it The Pit. now brings his Bill ag't the Deft, (who
married the Testor's Wife) for divers Slaves that were the Pit's
Father's and came to the Deft's hands by the marriage aforesaid
The Bill suggests that the Pits. Father died intestate Or if
the aforesaid Writing should be adjudged a Will the Birth of the
Pit. afterwards was a Revokation of it.
Mr. Attorney for the Pit. There being no Proof to this Writing
per testes — Or that it is the Testor's Hand Writing and one of
the Witnesses declaring she does not remember signing it This
could not be looked upon as a Will Especially if the Declaration
after the Birth of a son be considered which strongly implys
he had no Will at that Time or at least that he had an Intention
to alter it And it is no Wonder the Wife proved it who gained so
considerably by it.
That if this could be taken for a genuine Writing yet
the Birth of a son afterwards is Such an Alteration in the
Testor's Circumstances that a Revocation may well be pre-
sumed Otherwise here is a Child sent a begging [40] and
cited Lugg v Lugg 2 Salk. 529. and the Case of Shelton's
Will in this Court where the Testor having several Children
bom after making his Will a Revocation was presumed and
adjudged accordingly
Hopkins f Deft, The validity of the Will cannot be con-
BARRADALL'S REPORTS B43
tested here in this Suit but should be in the County Court where
Probate was granted Or upon an Appeal in this Court 2 Vem.
8. Moss V Archer. 2 Vem. 76. Nelson v Oldfield. But this a
good Will and appears upon the Face of it to be genuine And
Wills are seldom proved in any other Manner in England and
If this be a Will the Birth of a Son afterwards does not revoke
it By the Civil Law a Testament is annulled by the Birth of a
Child Dom. Vol. 2. 40. But not by the Law of England Swinb.
2. p. 174.
Decree for the Pit.
IsBELL & HIS Wife ag't Butler & others
In this Case a Question was made whether a slave given by
an Intestate in his Life time to a younger Child should be taken
at the Value he was when given or the Value at Testor's Death
Et per tor Cur' at the Value when ^ven Et rede ut Opinor tho*
Rand. & Hopk. con.
s. C. Jeflf. 10.
Jennings & his Wipe ag't Willis
There was a solemn Argument in this Case and County Court
Judgment affirmed by 7. Judges against two Upon reading the
Orders next Morning Sr. J. R. moved that the Court would
hear another Argument and granted which note as being without
Precedent.!
'Note. There is a Precedent where the Court ordered Judgment to be entered
for the Pits, and the next Day ordered it shotdd be stayed Cro. El. 93-4
In April 1735 A like Instance between Chew & Stevens.
[41] OCTOBER COURT MDCCXXXIV
Graves v, Kennan Appeal from Essex
In Detinue for a Chest of Medicines of the value of 40;^. upon
Non detinet pleaded the Jury found that the Deft, did detain
the Chest that it was of the Value of six Pence and Damages
10;^. and Judgment for the Pit. below.
B44 VIRGINIA COLONIAL DECISIONS
Upon an Appeal Exception was taken to the Verdict that it
was in certain finding that the Deft, did detain not that he doth
detain and so not pursuant to the Issue Besides the Jury value
the Chest only to six Pence yet give 10;^'. Damages which is
unreasonable and absurd.
And for these reasons the Judgment was reversed and the Record
remitted to the County Court for a new Trial
Exception was also taken to the Declaration that Detinue would
not lie for a Chest of Medicines without setting forth the par-
ticular medicines.
Randolph for the appellant sayed it would not be good in
Trover and that Trover and Detinue were all one and cited
Palm. 393. Stile 482. 1 Ven. 114. 2 Lev. 85. 3 Lev. 18. 1 Vent.
317. Sid. 445. Carth. 131.
Barradall f Appellee Trover and Detinue are not the same
and greater Certainty is required in Detinue than Trover
2 Salk. 654. But this is certain enough in Detinue All the
Certainty requisite is that it may be described to the Jury and
known by the Sherif when he comes to make Delivery Co. Lit.
286. b. 2 Bulstr. 308. And that may very well be in this Case
It would be almost impossible to describe every particular
Medicine and the Pit. must have failed in his Proof if he had
done so.
But if Trover and Detinue are all one then this Declaration is
certainly good for Trover will lie of a Box full of Linnen of the
Value of 20 £ Cro. Jac. 664. for a Library of Books 1 Ven. 114.
for 290 pedes Argenti 1 Salk. 219. for 20 Ounces of Cloves and
Mace without distinguishing how much of either 2 Sal. 654. for a
Case of Spirits Far. 141. And besides the Cases above cited 2
Saund. 74. 1 Sid. 98. 2 Show. 315. Skin. 147. 3 Lev. 336. 1 Sid.
263. 1 Keb. 807.
And per tot. Cur. praster Carter the Declaration is certain
enough.
[42] A question was made if Lands granted before 1710. should
be forfeited for want of Paiment of Quitrents within the Act
of 1710. and that of 1713. And Adjudged that such Lands are
not within those Acts.
But qucere of this Judgm't for the Act of 1713. seems clearly
to comprehend them vid. S. 9 & 10.
Besides there is this Inconvenience If the Patentee of Lands
granted before the Act deserts the Land and removes out of
BARRADALL'S REPORTS B45
the Colony the King can have no remedy for the Quitrent and
yet can't grant the Land to another
Yet in April 1741. the same Point was adjudged that these
old Grants were not within those Acts The Case was between
Bourden & Hill and the Pet. suggested as well the want of
Cultivation as the nonpaim't of the Quitrents It was proved
that there had been no Cultivation within 5.6 years (The Pat
was granted in 1674.) but the Court sayed it ought to be proved
there never was any Improvement, or they wo*d presume it at
this Distance of Time w'ch seems a strange Opin. Especially
in the Kings Case. The Pet. was dismissed.
APRIL COURT MDCCXXXV
Hunt ag't Harratson's Ex'ors
Judgment was confirmed in the Office ag't Harratson in his
Life time and now upon a Scire facias ag't the Ex'ors a Writ of
Inquiry was executed The Question was whether a Lawyer's
Fee should be taxed in the Bill of Costs and ruled that it should.
Darby ag't Stringer.
s. C. Jefif. 10.
Petition for Land granted in 1669. as lapsed for want of Seat-
ing Upon slight Proof of a seating many years ago tho' no
Appearance of it now Adjudged that the Land was saved.
[43] Harwood ag't Grice. Supersedeas
The County Court refused to let an Ex'or be a Witness to
prove a Will.
Randolph sayed it was the most known Thing in the World
that an Executor might be a Witness If he was a Legatee he
must release his Legacy
And per curiam he is a good witness Vide Tryl. per Pais 309.
And qucBre, In the Case of Hill ag't Hill April 1737. The like
Point was held in a Trial on a feigned Issue directed out of
Chancery to try whether Will or no Will.
Waddill ag't Chamberlayne.
S. C. Jeff. 10.
The Pit. declares that the Deft, fraudulently and deceitfully
Sold to him a Slave for a great Price 2b £, knowing the said Slave
B46 VIRGINIA COLONIAL DECISIONS
at the Time and for a long Time before laboured under an
incurable Disease not discovered by the Pit. and was of no
value There is a Verdict for the Pit. and I have moved
in arrestof Judgment that this action will not lie without a
Warranty.
This is an Action upon the Case in Nature of Deceit and such
Actions I agree will lie in some cases but not in this The Charge
here is no more than selling a Thing of Small Value for a great
Price and not discovering the Defects. And however inconsis-
tent this may be with natural Justice It is tolerated by the
universal Consent of Mankind where buying and selling is used
The principal advantage in the way of Commerce is to sell dearer
than you buy And as to the Quality or Goodness of a Commodity
the Law has left it at large pretty much to the Conscience of the
Seller who too often takes advantage of the Buyer's Ignorance.
The Law has provided a Guard against those Impositions to
those who are Prudent enough to make use of it that is a War-
ranty from the Vendor of the Goodnes Value &c. But without
such Warranty no Action will lie for any little Fraud Or Over-
reaching in the Value or Goodness of the Thing sold But in such
cases the Rule is Caveat emptor And if the Law was otherwise
there would be no End to Actions but every Contract almost in
buying and selling might produce one.
There is no Rule of Law perhaps more universally known than
this It is in every one's mouth What Frauds are [44] practised
every Day in the sale of Horses yet I never heard of an Action
brought without a Warranty No man thinks himself obliged
to discover the Defects of the Thing he sells and unless the
Buyer is prudent enough to exact a Warranty I take it he is
without Remedy.
I will not deny but there are some Instances where an Action
will lie for Deceit in a Sale without express Warranty as where
it is a Thing unlawful in itself as the selling of bad Victuals
9 H. 6. 53. b. 11. E. 4. 6. b. Kel. 9L Cro. Jac. 197. 470. but
the Reason given in all these Cases is that it is prohibited by
Law to sell bad Victuals which proves the Action would not lie
but for that reason.
2 Ro. Rep. 5. 6.
So if I sell a Thing affirming it to be mine when it is anothers
this affirmation amounts to a warranty if I am in Possession
BARRADALL^S REPORTS B47
otherwise not 1 Salk. 210. Medina ag't Stoughton So are
divers other Cases which prove there must be either an express
Warranty or something that amounts to it in Construction of
Law And it is evident from the Case of Medina &c. that if
sell a Thing out of my Possession affirming it to be mine (tho* this
is an apparent Fraud) no Action will lie for there Caveat emptor
says the Book.
Cro. El. 44 Cro. Jac. 474. 1 Ro. Ab. 90. 3. Mod. 261. Show. 68.
There is a Case that I suppose will be quoted against me
And if That is Law then this Action will lie but I humbly con-
ceive it is not 9. H 6. 53. b. in 1 Ro. A. 90. If a man sells a
Piece of Cloth knowing it not to be well fulled an Action of
Deceit lies for this is a Warranty in Law says RoUe but the
Book says no such Thing nor indeed is the Point adjudged in
the case but cited to be adjudged in another Case. It is only a
saying obiter of one of the Judges and can carry no great author-
ity with it especially as it is not supported by any subsequent
Resolutions but the whole Current of Authorities since is con-
trary.
There is the Opinion of Frowick in Kelw. 91. and of Popham
in new Dier 75 Margine Chandler ag*t Lopus in Favour of this
Point but the first is a single Opinion And as to the second tho'
it was adjudged in the K's Bench according to the Opinion of
Popham yet that Judgm't was reversed in the Excheq'r Chamber
Cro. Ja. 4.
If a man sells a Pipe of Wine that is corrupted [45] and
does not warrant it to be good no Action lies F. N. B. 94. c.
Bridgman 12. 7. and 1 Ro. A. 90. con. is not warranted by the
Book for it appears in the Case there was a Warranty It is
said indeed the Warranty is not Material but what is the Reason
given why because it is prohibited to sell corrupt Victuals Bridg.
127. Southern ag't How Case of a Counterfeit Jewel which the
Deft, knew to be so Adjudged no Action lay without a Warranty
In the Report of this Case Cro. Ja. 468. the Council for the Pit.
labour this Distinction where the Deceit is sciens or not No
Judgm't is given by the Report there but in Bridg'm Judg't
was given for the Deft because the Action would not lie without
a Warranty except in the Case of bad Victuals which goes upon
another Reason as I have shewed.
Pop. 143 S. C.
B48 VIRGINIA COLON-IAL DECISIONS
If a man sells a Horse that is lame or diseased without War-
ranty no Action lies F. N. B. 94. c. Bridg. 127. 1 Ro.Ab. 90. 4.
This is a Common Case and what every Body knows and was
never yet denied Nay if there is an actual Warranty it extends
only to secret Infirmities not such as are visible and apparent
as the Want of an Eye or any other Defect within the Knowl-
edge of the five Sences as the Book ot 11. E. 4. 6. b. expresses it
So is the Civil Law 1 Domat 85. 10. Yet it is a Fraud and
Deceit in the Seller not to discover this Defect to the Buyer
but here Caveat emptor 1 Sal 211. Butterfield ag't Burroughs is
not con. but rather warrants this Opinion for there the Court
said they would intend it a secret Infirmity being after a Ver-
dict.
This Case of a Horse I take to be directly in Point for where
is the difference between a Horse and a Slave as to this Matter
If an Action will not lie in one Case neither will it in the other
as I conceive.
As to the Difference taken where the Deceit is sciens or not it
has its Foundation from that Opinion in 9. H. 6. 53. b. only
cited as I have observed no one adjudged case since to support it
but the whole current of Authorities as well as Common Experi-
'ence ag't it. I will agree this Difference is taken with respect
to the Property in several Cases 1 Danv. 178. If a man sells a
Thing knowing it to be anothers an Action will lie without
Warranty but this Point is settled in Medina ag't Stoughton
cited before.
In my little Reading I could never find a Precedent of such a
Declaration as this but the Precedents are all upon Warranties
and I believe no such Precedent can [46] be shewn And if there
cannot it will go a great way to prove my argum't Sr. E. Coke
says an Argument drawn from Books of Precd'ts and Entries is
very forcible.
In short Sir if this Action is maintainable a great deal of
Learning we meet with in the Books upon the subject of War-
ranties might have been spared. It must be useless and insig-
nificant And the rule Caveat emptor may be thrown out of
Doors
I expect to be told that this is arguing in Favour of Fraud
that this makes Buying and Selling a mere cheat and learned
Lessons we shall hear no doubt concerning the Immorality of
the Thing. But however such kind of reasoning may serve to
BARRADALL'S REPORTS B49
gain popular applause and raise a High Idea of the Orator's
Integrity it will never I am sure prevail with discerning Judges
The Laws of Society and Civil Government are not founded
upon the strict Rules of natural Justice public Convenience oft
requires they sho'd be dispensed with The Punishment of Theft
bears no Proportion to the Crime Yet it is found necessary to
make it so severe I need not mention other Instances they
are obvious enough
Therefore to make specious Harangues concerning the Morality
or Immorality of an Action that is to be determined by the Laws
of a particular Society is arguing neither like a Lawyer or a
Politician
It is a Rule of all Governments I believe that the Good of the
Majority is to be preferred Agreeable to this we have a Maxim
in the Common Law Lex citius tolerabit privatum Damnum quam
publicum malum Therefore the Judges in their Determinations
do not so much regard what the Injury is to particular Persons
but what the general convenience or Inconvenience Will be
An Argument ab inconvenienti is very forcible in Law for the
Rule is Omne quod est inconveniens est illicitum.
Now Sir I conceive the Inconveniences will be many fold if it
be established for Law that an Action will lie for Selling a
Thing of small Value for a great Price or for selling a Commodity
without discovering the Defects which are the Charges in this
Dec'l It will tend to multiply suits without End Every Man
that is displeased with his Bargain will have it to say The Thing
is not so good or worth so much as I thought [47] And if this
shall be a Foundation for an Action a desire of Revenge or
Proneness to be litigious may produce a Law suit out of every
Bargain that is made How much more reasonable is it that a
particular person should sometimes suffer than such a general
Inconvenience be introduced especially since the Law has put
it in the Power of every man to secure himself against Imposi-
tions of this kind by requiring a Warranty And if he does not
do it he suffers through his own Folly and Negligence and the
Law is not to be blamed If this Action will lie every Vendor of
Slaves imported will be subject to the same It frequently
happens that there are Distempers among their Slaves but the
Seller does not think himself obliged to publish this to the World
Nor is it thought criminal even to use arts to conceal it Numbers
of these distempered slaves have been sold and the consequences
B50 VIRGINIA COLONIAL DECISIONS
sometimes very fatal But I never yet heard of an Action being
brought Tho* we may expect for the future to see them very
frequent if this is established as a Precedent.
I will beg leave to mention a Case adjudged here last Court
Lewis V Colston It was in Chancery Lewis brought a Bill ag't
Golston suggesting the want of Witnesses to be relieved con-
cerning the sale of two Slaves which he alleged the Deft, war-
ranted to be sound but were in Truth distempered The Deft,
denied the Warranty And tho' it was proved the slaves had
been distempered for some Time and till just before Lewis
bought them and that the Deft, knew it Yet the Court denied
any Relief because the Warranty was not proved
If Equity could not relieve in such a Case much less can an
Action at Law be maintained I remember very well Sr. J. R.
who was then of my side of the Question argued an Action
would not lie without a Warranty He sayed those little arts
which are used every day in the way of buying and selling and
in putting off bad Commodities were no Grounds of an Action
Nay he went so far as to say all Trade was a kind of Fraud
How right he is in his Opinion I must submit but I am apt to
think his Argument now will not be very consistent with his
Doctrine then.
There is one Thing I have omitted to mention and that is the
Rule of the Civil Law in buying and selling In preiio emptionis &
venditionis naturaliter licet contrahentibus se circumvenire The
Civil Law is universally allowed to be the most equitable perfect
Law in the World And yet this Kind of Art and Overreaching
in buying and selling [48] is tolerated and indeed there could be
no such Thing as buying and selling if it was not.
I am perswaded then your Honours will not be induced from
any plausible Pretence of the Immorality of the Thing to give
Judgment ag't the Law I take the Law to be clear in Favour
of the Deft, and I pray that Judgment may be staied
Judgment was given in
this Case for the Pit. in April 1735
OCTOBER COURT MDCCXXXV.
One was indicted for Stealing an Horse and found guilty
In arrest of Judgment it was shewed that the Venire facias was
BARRADALL'S REPORTS B51
awarded to a wrong County and thereupon adjudged to be a
Mistrial.
Mr. Attorney moved the Prisoner might be remanded and a
new Venire facias awarded He mentioned the Maxim that a
Man should not be twice put in Danger of his Life but sayed
here the Prisoner's Life had not been in Danger the Jury that
tried him having no Power to Convict him.
And he was remanded accordingly
Cited 6 Rep. 14. Arundel's Case in Point and 4 Rep. 39. 40.
45. a. 47. a. where an Indictment is insufficient a Man may be
indicted again See 2 Hawk. 377. s. 10. 379. s. 15.
4 Co. 44. 45. Vauxe's Case 3 Inst 214.
[49] Morris ag't Chamberlayne Supersedeas
It was suggested that the Deft (Pit. below) had delivered a
Writ ag't one to the Plaintif 's Undersherif and ordered him
to take no Security on Purpose to get a Judgment against the
Sherif which he did The Undersherif was offered to prove this
It was objected he was no good Witness being answerable to
the now Pit. and so concerned in Interest
The PU, offered to release him but the Court would not admit
him a Witness.
Note he was an Indigent Person and the Pit. did not actually
release him only offered to do so
Lee, Tayloe, & Randolph for admitting him but Randolph
next morning changed his Opinion because the Witness was
not actually released Lee and Tayloe not in Court
If he had been actually released he ought to have been a
Witness Vide.
APRIL COURT MDCCXXXVi.
A case was cited by Sr. J. Randolph of Col. Mason's where it
was adjudged the Act of Limitation would run against a Bill of
Exchange Contra ejus opinionem meamque quidem See Post
Boys ag't Hoggatt. 75
Jameson v Vawter Appeal
Error assigned that the Defendant below offered to demur
to the Plaintif 's Evidence being mva voce and the Court would
not make the Plaintif join
B52 VIRGINIA COLONIAL DECISIONS
Per Curiam The Court should have made the Pit. join or
have directed the Jury to find specially
Judgment reversed
Randolph fr Pit. denied the Authority of Middleton & Baker
Cro. Eliz. 751. and cited 1 Inst. 72 & Try. per Pais 418
[50] OCTOBER COURT MDCCXXXVI.
TuTE V, Freeman
In debitcUus assumpsit for 2d£, for Goods sold Mony paid and
Services done. The Jury found only nine Pounds three Shill-
ings Damage
S. C. Jeff: 24.
Randolph moved that no Judgment ought to be given the
Damages being under j^lO. Sterling and so the Action will not
lie in this Court
Barradall e-contra Judgments are given here every Day where
the Damages found by the Jury are under ;^10. if the Cause of
Action laid in the Declaration is for so much and so the Practise
was agreed to
And the Motion overruled
Sed vide the case of Pinchback v. Rogers October Court 1739.
where it is adjudged contra and the case of James Bray was
cited who was non-suited the Ballance of a Bond being under
10;^ Sterling
Jones ag't Langhorn
S. C. Jeff. 37.
In Detinue upon a special Verdict the Case was A woman
possessed of Slaves devised to her during Life and after her
Death to another marries and joins with her Husband in a
Deed of Mortgage of these Slaves for 99 years the Husband dies
this Action is brought by the Mortgagee ag't the Wife for Recov-
ery of the Slaves.
Barradall for the Pit. The Deed is undoubtedly void as to
the Wife and so it is meerly the Act of the Husband The Ques-
tion then is solely this Whether the Husband in this Case could
dispose so as to prevent any Title or Interest from surviving
to his Wife and I conceive clearly that he might It is agreed
that the Slaves in this Case are to be considered as Chattels the
BARRADALL'S REPORTS B53
Devise to the Wife being before the Act making them a real
estate I shall then consider the Interest accruing to the Hus-
band in the Wife's estate which is different according to the
[51] Nature and Quality of that Estate In her Lands &c he
acquires a Freehold during the Coverture or an Estate for life
if there is issue between them In Chattels real he acquires a
Property and a Power of disposing in his Lifetime but not by
Will If he dies first without disposing they survive to her
If she dies first they survive to him 1 Danv. 705. 8. 1. Inst. 351 a.
But as to Chattels personal Marriage is an absolute Gift of all
such in Possession whether the Husband Survive or not Co.
Lit. 351. b. And this I presume whether the Wife has an
absolute or only a temporary or qualified Property for all the
Right & Interest of the Wife be it more or less is by the Marriage
transferred to the Husband and vests in him by Way of Gift
There is no Case in Law that makes any Difference Nor is there
any in the Reason of the Thing If the Husband has a right to the
greater by the argument a majori ad minus he has also a right
to the less For that Otnne Majus coniinet in se minus is a Rule
of Law as well as an Axiom of Philosophy certainly it must
appear absurd that the Law should give the Husband Chattels
in which the Wife has an absolute Right and not those in which
she has a lesser Interest The Husband's Right as to Chattels
personal was always the same And as to Chattels real it has
been carried further in later Times than formerly for he may
now dispose of the Trust of a Term as was adjudged about
Micha's 1680 in the House of Lords, in Sr. Edw'd Turner's Case
1 Vem. 17. which is the first case of that sort the Law being
otherwise before But since has been always held according to
that Determination 1 Vern. 18. 2 Vem. 270. Tudor v. Samyne.
Now- whether the Interest of the Wife be only for Life or in the
whole term it will certainly make no Difference Whatever
Interest she has the Husband has a power of disposing and if in
Chattels real surely in Chattels personal too in which he acquires
a more absolue Right by the Marriage.
If 1 Inst 351 be objected that the Husband shall not charge
his Wife's Chattle real tho' he may dispose but if she survive
she shall hold it discharged That rule does not hold in Chattels
personal as this Case is Besides all that is meant by that is that
he shall not charge her Term with a Rent 1 Ro. Abr. 344. 5. &
346. 2. But I question [52] Whether the Law be so at this Day
B54 VIRGINIA COLONIAL DECISIONS
the Husband's Power over the Wife's Term being enlarged sine
Coke wrote in the Instance just now mentioned and it is cer-
tainly absurd a Man should have a Power of disposing and not
of charging Then our Case is different too Here is a Mortgage
and the Estate and Interest become absolute in the Law for the
Term by nonpayment of the money and only an Equity of Re-
demption left in the Mortgagor
Randolph & Deft. Slaves here are to be considered as
Chattels Now the Property of a Chattle cannot be divided so as
that Part of the Property shall vest in one and Part in another
But when a Chattle is given to one for Life with Remainder over
the Devisee for Life has only the Use and the Property vests in
the Remainder man Tis upon this Distinction alone that Re-
mainders of Chatties are allowed for if the Property vested in
the first Devisee the Remainder over must be void because the
Gift of a Chattel for an hour is a Gift forever That the Wife
here having only the Use and no Property this Use vested in the
Husband only during his Life but he had no Power of disposing
so as to conclude the Wife after his Death tho' the Disposition
might be good during his Life and cited 1 Inst. 351. a. where a
difference is taken between a Property and a bare Possession as
Where a Woman has Goods as Bailee or Ex'trix this bare Posses-
sion is not given to the Husband by the Marriage He also cited
Mor. 522. Thomson v. Butler where the Husband's Release of
the Wife's Annuity was adjudged no Bar after his Death, And
mentioned the Case of Brown v. Willis in April 1731. in this
Court which he said was in Point He sayed it would be a hard
Case upon Women especially Widows marrying second Hus-
bands if they happen to survive That it would be inconvenient
too since the Slaves might be taken in Ex' on for the Husband's
Debts or sold by him to the Prejudice of those in Remainder
To which it was replied That it was true in the Language of our
Books by the Devise of a Chattel for Life with Remainder over
the first Devisee has [53] only the Use and the Property vests
in Rem'rman That this this [sic] Distinction was kept up
upon the Groimd of that Old Rule of Law The Gift of
a Chattel for an Hour is a Gift forever but in Effect the
first Devisee has a Property during Life having all the
Marks of Ownership except that of selling absolutely Whatever
profits can be made are his he may maintain Trover and even
dispose during Life and certainly this is something more
BARRADALL'S REPORTS B55
than a bare Possession which is the case 1 Inst. 351. and so
nothing Uke this.
The Use here is coupled with an Interest and wherever there
is an Interest there must be some Degree of Property for what
is Property but a Power of using and disposing which a Devisee
of a Chattle for Life has during a Life Certainly then such
Devisee has a qualified Property Nobody will dispute but he
may sell during Life Marriage is an Alienation a Gift in Law
equivalent to any Alienation in Fact It is agreed the Slaves here
vested in the Husband during Life if they vested at all they
must for the whole Interest the Wife had it being all transferred
by the Marriage
It is absurd to talk of the Hardships upon Women unless it
be a Hardship that any Thing should vest in the Husband by
the Marriage Is it harder that a lesser Interest should vest in the
Husband by the Marriage than a greater The Argument from
Inconvenience is full as ridiculous since since Chattels so taken
may as well be taken for the Debts of the Wife as for the Debts
of the Husband or sold by her in prejudice of the Remainderman
It may be an Argum't against allowing such Devises at all but
is none ag*t the Husband's Right in such Case.
Judgment for the Deft, per totatn curiam prater Lightfoot &.
Tayloe.
A like Case between Clements & Walker was argued in April
1739. And the same Judgment given fr Randolph, Grymes,
Carter Diggs & the Governor. Custis & Robinson con.
Stretton v. Martin
Debt on Bond with Condition to pay a certain sum so soon
as a Release should be procured from the owners of the Ship
Prince Eugene of all their Right to said Ship and [54] delivered
to John Willis Agent of the ObUgor in London Deft, pleaded the
Pit. did not procure such Release and deliver the same to Willis
The Pit. replied that he did.
Upon Trial of the Issue joined the Pit. produced a Certificate
under the hand of Willis that such Release was delivered to him
which Certificate was proved to be signed by Willis.
It was objected that this was no Evidence If WilHs was present
in Court he must give his Evidence upon oath Therefore at
least he ought to have made an Affidavit of the Truth of this
B56 VIRGINIA COLONIAL DECISIONS
Certificate and that sworn before the Lord Mayor would be
good Evidence by the late Act of Parliament. But this Certifi-
cate was no more than an assertion without Oath which was
never allowed as Evidence in any Court E contra. Tho' the
general Rule of Law be that every Witness must testifie upon
Oath the Case here is very diflEerent Willis is appointed the
Deft's agent for a particular Purpose Now if the Defendant
himself had acknowledged under his Hand to have received
such Release it would certainly be good Evidence. By the Same
Rule this Certificate is Evidence For Willis is in the Place of the
Defendant and the Defendant is bound by his Act.
To which it wets replied We must be in an unhappy Circum-
stance if the Certificate of our Agents in England without oath
shall be Evidence of any Matter of Fact that may aflEect our
Property. It is a Case of general Concern and no body knows
whose Turn it may be next. It is true where a man appoints
an Attorney or Agent for a particular Purpose he is boimd by
his Act. But that is not the Case. Willis here was to be purely
passive to receive the Release if he he has done so no doubt we
are concluded but this we say ought to be made appear by
something more than a bare say so. If the Certificate be true
Wills may easily make an Affidavit and there is no Reason in
this Case his Word should be taken.
The Court was unanimously of opinion that this Certificate
ought not to be admitted as Evidence. And so the Jury found
for the Defendant. The Plaintiff tendered a Bill of Exceptions
(which was sealed in Court) and appealed.
[55] Taylor ag*t Graves.
S. C. JeflE. 40.
In Detinue a Case was agreed vizt. R. P. poss*ed of the Slaves
in Question by his Will dated in 1712. devises to his daughter
Mary the Use Labour and Service of them during her Life and
after her Decease the said Slaves and their Increase to fall to
her Heirs of her Body lawfully begotten forever.
Mary had issue a Daughter living at the Time of the Devise
and the Death of the Testator but died before the Mother who
is also dead and the Pit. claims as Heir to the Testator.
Mr. Atty. Gen. fr Ptt. By the Act of 1705. Slaves are
made a real estate tho' the Law is now altered by the Act of
BARRADALL'S REPORTS B57
1727 with respect to Gifts and Devises of Slaves that they can
only be given and devised as Chattels personal. There is how-
ever a Proviso in this last Act that where Slaves have been
before given for Life and the Remainder thereupon limited to
another that such Remainders shall be good in Law to transfer
the absolute Property to the Remainder man.
The testator here has given only an Estate for Life to his
Daughter with a Contingent Remainder to the Heirs of her
Body and there being «uch when the Contingency happened
viz. at her Death the Remainder is void and the Pit. as Heir
at Law to the Testator is entitled to these Slaves
Barradall fr Deft I conceive that Slaves in this Case are to
be considered meerly as Chattels, but before I speak to that I
shall shew that taking them to be real estate the Pit. can have
no Title If this was a Devise of Lands Mary would take an
Estate tail by the Words of this Will and not an Estate for
Life with a Contingent Remainder to the Heirs of her Body
It is a Rule laid down in Shelley's Case 1 Rep. 104. b. 1 Inst. 22.
b. that where the Ancestor takes an Estate of Freehold a Limita-
tion to his Right Heir or Heirs of his Body are Words of Limita-
tion and not of Purchase And so it was adjudged 1 Vent. 214. 225.
King & Melling and Fitzg. 7. Shaw & Weigh There is how-
ever some exceptions to this General Rule in the Case of Wills
where the Testator's Intention is apparent to lodge the Inherit-
ance in the Issue as Lodington & Kyme and Backhouse & Wills
cited Fitzg. 22. Shaw v. Weigh. See Raymond's Argimient in
that case In Wild's Case 6 Co. 17. A Difference is taken
where the Ancestor has Issue living at the Time of the Devise
and where not that in the first Case the Issue shall take by
Way of Remainder and so Hale's Opinion seems to be 1 Vent.
229. Upon the authority of that Case. But I take the Law to
be otherwise settled at this Day Nor is there any Authority to
support that Opinion since Wild's Case which too was against
the Opinion of two Judges I conceive then by this Devise
Mary had an Estate tail and then the absolute Property vested
in Her For Slaves could never be entailed before the [56] Act of
1727. And under that Act only when annexed to Lands The
constant Resolutions of this Court have been so
On the other side if Heirs of the Body here are taken as Words
of Purchase and Slaves are to be considered as real Estate then
the Remainder being contingent and void in Event by Mary's
B58 VIRGINIA COLONIAL DECISIONv^
leaving no Issue the Pit. is certainly well entitled. But Slaves
in this Case are no more than Chattels. It is true the Act of
1705 makes Slaves a real Estate to some Purposes but not to
all. They are to descend to the Heir if a Man dies intestate
and a Woman is to be endowed of them But there is an express
Proviso that Sales and Alienations of them may be made in the
same Manner as before making the Act. There was some
Difference of Opinion in the Construction of this Act which
occasioned the Act of 1727. not to alter the first Act but to
explain and amend it. And where a subsequent Act explains a
former it cannot be said to alter it but only points out the true
Construction. The words of the last Act respecting the present
question are worthy observation. It recites the Difference of
Opinion in constructing the first Act and then Enacts **That
the said Act shall hereafter be construed and the true Intent
and Meaning is hereby declared to be" No other Construction
then can now be made than what is hereby declared to be the
true Construction.
It is not at all material whether the Case happened before or
since the Act of 1727. The Law was always the same This
last Act does not alter the first as I sayed It only explains
and points out the true Construction And the Words of the
last Act are mighty plain (and so indeed I think are the Words
of the first) that in Sales Gifts and Devises Slaves are to
be regarded merely as Chatties ** A Sale Gift or Devise
is to transfer the absolute Property as if such Slaves were a
Chattle**
Taking then Slaves to be Chatties the Plaintif can have no
Kind of Pretence. It will not be denied but that a Chattle
may be given for Life with Remainder over It is not material
whether the Chattle itself be given or only the Use for Life
The Law makes the same Construction in both Cases viz. that
the first Devisee has only the Use and the absolute Property
vests in the Remainder man. The use only is given by his Will
to Mary for Life and after her Death the Slaves are to fall to the
Heirs of her Body If Heirs of the Body here are taken as
Words of Purchase as Descriptio vel designatio persotUB the
Daughter of Mary took the Remainder as a Person well described
and then the absolute Property vested in her and the Slaves
must go to her Heirs and not to the Testator's. If they are not
Words of Purchase [57] but Words of Limitation then Mary
BARRADALL'S REPORTS B59
has an Estate tail given to her and such a Devise will pass the
absolute Property of a Chattle
But supposing the Remainder void by Mary's leaving no
Issue at her Death In that Case I conceive the absolute Prop-
erty vested in Mary For I take the Law to be very clear that
if a Chattle is given to One for Life or the Use for Life (for there
is no Difference) and no Remainder is Umited or a Remainder
that is void either in its Creation or in Event the absolute
Property vests in the Devisee for Life and can never resort back
again to the Representative of the Testator, Qucsre de hoc.
It has been endeavoured in this Case to compare Slaves to
Chattels real and many cases there are of Devises of this sort
some of which have been cited To what Purpose I am still to
learn Cotton & Heath 1 Ro. Abrig. 612. Devise of a Term
for Life and after to the eldest issue male Adjudged the Issue
male shall have it as an Executory Devise tho* none in being
at the Time of the Devise which is stronger than our Case
there being here an Heir of the Body living at the Time of the
Devise.
Peacock & Spooner 2 Vem. 195. is exactly this Case only
stronger as it was in the Case of a Deed A Term was assigned
in Trust to permit Husband and Wife and the Survivor to
receive the Profits during their Lives and after their Deaths to
the Use of the Heirs of the Body of the Wife Here the Heirs
of the Body took by Purchase and as a Person well described
\sic\.
Id. 362. Daffom & Goodman S. P. adjudged But Webb &
Webb Id, 668. the same point coming in Question adjudged the
Devisee for Life had the whole Term and that Case is the same
with Ours
It is not material to the Plaintif whether the Devisee for Life
or the Heir of the Body has the Right for in either Case he has
none and I cannot imagine Upon what Rule of Law he can
pretend to any
I shall only observe further that in all the Cases upon this
subject the Question is between the Heir of the Body and the
Executor of the first Devisee who shall have the Remainder
But there is no Instance that ever the Exor or Heir of the Testa-
tor set up a Title to such Remainder
Judgment fr Deft, per totam curiam but upon what Point I
could not learn
B60 VIRGINIA COLONIAL DECISIONS
Hill ag't Hill's Executors
This was a Bill in Chancery brought against the Heir to have
Possession of the Land deUvered to the Ex'tors for executing
certain Trusts pursuant to the Testator's Will The Will had
been proved in the County Court and the Heir at Law summoned
according [58] to the Act of Assembly But now it was insisted
that a Court of Equity would never estabHsh a Will against an
Heir without a Tryal at Law 8 Mod. 90.
And per totam curiam prater Tayloe a Trial at Law was
directed.
APRIL COURT MDCCXXXVII.
Bernard v. Stonehouse.
In Ejectment the Term being expired the Question was whether
the Pit. might proceed for Damages
The Action of Ejectione Firmoe is no more than an Action of
Trespass in its Nature And was and still is the proper Remedy
for a Termor for years who is ejected before his Term ended
either by the Lessor or a Stranger In which Action the Pit.
is to recover Damages for the Trespass and Injury done him
in ejecting him and his Term if there be any to come The
Declaration in this Action proves the Nature of it It sets
forth a Lease made to the Pit. by virtue of which he entered
And that the Deft, with force and Arms ejected him to his Dam-
age There is not a Word of recovering the Possession in the
Declaration So that as in all other Actions of Trespass Dam-
ages are the principal Thing to be recovered And the Term
only an Incident if there be any to come Di. 117. Cro. El. 854.
Pahn. 337. 9 Co. 79. 80. Hale's F. N. B. 505. 506.
If the Pit. enter pending the suit this shall not abate the
Action which proves the Term or Possession are not the prin-
cipal Thing to be recovered but the Damages F. N. B. supra in
the Notes.
The Writ of Quare ejecit infra terminunt is not unlike this
being the proper Remedy for a Termor for Years where his
Lessor ousts him and enfeoffs another. In which Case he
cannot have an Ejectione firnuB against the Feoffee because he
BARRADALL'S REPORTS B61
did not oust him but the Law gives him this Writ In which
as in the other he shall recover his Term and Damages And
in this Suit if the Term expire pending the Writ the Suit shall
not abate F. N. B. 457. Thus it is clear that where there is a
real Lease and Ejectm't the Expiration of the Term will not
hinder the Suit from proceeding. Indeed it would be absurd
and unjust that it should because an injury is done in ejecting
a Man for which he ought to have Recompense and this is the
Remedy the Law has appointed.
But it seems to be agreed that in Case of a real Lease the
Law is so The Objection here is that Ejectm'ts as now
[59] practised are all a Fiction, a new Invention to try Titles
and there is no real Trespass or Ejectm't in the Case And there-
fore the same Rules & Reason cannot nor ought to govern them
as when there are real Leases
I admit that most Ejectm'ts now a days are brought to try
Titles and that very often there is no real Lease But it is a
mistake to say there never is for there is sometimes a Necessity
where there is no one upon the Land And no doubt it some-
times happens that a real Termor is ejected and then this is
still the only Remedy It is true that the Lease the Entry and
the Ouster in these Actions that are brought to try Titles have
often no real Existence but are mere Fictions but yet the Con-
fession of them upon Record which the Deft, by Rule of Court
is compelled to, makes them have all the Operation and Effect
of Realities and the Deft, shall never be admitted to aver against
his own Confession Upon Record that there is no real Lease
whatever the Truth may be he is estopped from saying it
Indeed the Confession of the Lease Entry and Ouster are of no
Use if the Deft, may afterwards deny those Facts he has con-
fessed
This Practice then as I conceive has not at all altered the
Nature of the Action of Ejectione firntcs but the Declaration the
Judgment and other Process is the same as if a real Lease Entry
and Ouster was for long before this Practice was introduced
it was usual to try Titles in this Action of Ejectione firmce.
In ancient Time the usual way of trying Titles and recovering
Possession was by real Action The Process of which every body
knows is very tedious, and difficult and besides a greater In-
convenience attended and that was the Peril of being concluded
B62 VIRGINIA COLONIAL DECISIONS
by a single verdict For if a verdict was found against the De-
mandant he was forever barred to bring any other Action unless
of a higher nature This it was gave Rise to. the Invention of
trying Titles in this Action of Ejectione firmce where the Process
is speedy and easy and a Verdict is no Barr or Conclusion of the
Right but the Pit. or Deft, may bring another Ejectment
if he will In the time of Lord Dier who was made C. J. 1. . Eliz.
and hved to the 24, This was the Method of Practice in the King's
Bench where indeed no real Action can be brought. But then
there was always a real Lease sealed and actual Entry and Ouster
as is still the Case sometimes.
Lord Dier observing that by this Practice most Men chose to
have their Titles tried in the King's Bench which lessened the
Business of the Common Pleas he first introduced this Method
of obUging the Deft, to confess the Lease Entry and Ouster
and established the Practice upon the Foot it is now that upon
delivering a Declaration to the Tenant in Possession if he would
not appear and confess the Lease &c. Judgment should be
entered against him by Default And this Method being found
easier than the old way of actually sealing Leases soon became
the Practice of both Courts and have continued so ever since.
[60] No Man will say that the Nature of this Action is at all altered
or changed where a real Lease is sealed altho' the Title do come
in Question Neither can it then upon these feigned Leases since
by the Confession they have all the Effect of real ones.
It is common in Actions of Trespass for the Title of Lands
to come in Question And they are often brought for no other
end yet the nature of the Action is still the same and so is the
Ejectment.
In 9 Co. 77. Peytoe's Case it is adjudged that Accord and
Satisfaction are a good Plea in Ejectment and the Reason given
is because Damages are the principal Thing recovered. Those
who argued against the Opinion agreed that if the Term expired
pending the Writ it would be a good Plea because then only
Damages could be recovered.
And I must beg leave to add the Authority of Sr. E. Coke in his
1 Inst, who expressly says that tho' the Term incur pending the
Suit the Action shall not abate He takes a Difference where Part
of the Action determines by Act in Law and the like Action
remains for the Residue and where the like Action does not re-
BARRADALL'S REPORTS B63
main for the Residue. In the last Case he says the Suit shall
abate but not in the other and this he illustrates by two examples
1. Of an Action of Waste brought aganist Tenant for another's
Life and pending the Writ Cestui que vie dies yet the Action
shall go on for Damages and so in Ejectment if the Term incur
Yet the Action shaU proceed for Damages because in both
Cases an Action will lie for Damages only And these Cases are
exactly parallel for in the first the Action of Waste the proper
and regular Judgment is to recover the Place wasted and Damages
but Judgment cannot be for the Place wasted after the Death of
Cestui que Vie when the Interest of the Tenant in the Land is
determined Yet it shall go on far Damages And so in Ejectment
tho' the Term be ended and we cannot recover that yet we may
proceed for Damages. I must observe that this Book of Sr.
Edward Coke's was wrote long after this new Method of Practice
as it is called was introduced And so were most of the Cases
cited 3 Mod. 249. is a more Modern Authority And Mr. Danvers
who wrote much later has the same Point in his Abridgm't 2
Part 757. In the Case of Shaw & Weigh Fitzgibb. 17. which
happened in the 1. of the present King Lord Raymond who
dehvers the Opinion of the Court says that the Term being
expired the Pit. cannot have Judgment for the Possession only
for the Damages which is a plain and very recent authority
that the Action does not abate by the incurring of the
Term
[61] It has indeed been offered to account for the Opinion
by taking a Difference where there is a Verdict and where there
is none and yet in the Case of Shaw and Weigh there was a
Verdict which there is not in this Case But where is the Sense
or Reason of this Difference. The Argument is that by the Ex-
piration of the Term the foundation of the Action is destroyed
the Lease is expired and it is absurd there should be a Judgment
when it is known the Possessoin is the Thing intended to be
recovered. Is not this Argument equally strong whether there
be a Verdict or not If the Pit's right of Action is really deter-
mined by the Expiration of the Lease what good Reason can
be given why he should recover after Verdict more than before.
In other Cases it is not so but where the Right of Action de-
termined a Verdict will not help the Pit. Indeed it would be
absurd that it should And therefore the granting that after a
B64 VIRGINIA COLONIAL DECISIONS
Verdict the Action may proceed does allow that there is a Right
of Action in the Pit. tho. the Term be expired.
This Difference as it has no Foundation in Reason so neither
is there any Authority for it. But there are Authority s ex-
pressly against it. It may be fashionable for any thing I know
to despise my Lord Coke and his Authority which is express
that you may proceed to recover the Damages tho* the Term
be expired. Now how can you proceed to recover Damages if
if they be given before. This cannot be sayed with any Propriety
and Coke was a very exact writer — 3 Mod. 249. is said to be
the Saying of Council. But it is not denied on the other Side
and so it is of some Weight Danvers a most accurate Writer and
good Lawyer says the Same and lastly Lord Raymond whose
Authority alone is sufficient.
The Cases on the other Side cited out of Salk are nothing to
the Purpose. The Court refused to enlarge the Term but they
did not say they could not proceed for Damages. But say they
the Motion would be useless if the Pit. might proceed for Damages
That is a great Mistake. Possession is certainly some advantage.
In England we know it is a very great one. The Expence and
Delay attending Law Suits there is a Sufficient Reason for the
Pit. to move to enlarge the Term to prevent the Charge and
Delay of another Suit which he must be at to recover the Posses-
sion Death of Lessor does not abate suit tho' it is equally well
known to be his suit and not the Lessee's as well as that the
Term is a Fiction.
Sal. 254.
No reason that it should abate nor no Inconvenience that it
should not. If the Law was so the late Acts to prevent Suits
abating in other Cases would have taken in this
Upon this very clear Point the Court at first was against me but
upon hearing a second argumt.
Judgment was given that the Plaintif might proceed for
Damages by the Opinion of Lee, Tayloe, Randolph, Carter,
Grymes, Robinson, Byrd, the Governor Lightfoot, Custis, Diggs
con. Blair dubitante.
[62] Parsons ag't Lee Sherif of Stafford. Appeal.
s. c. Jeff 49.
Debt for Escape the Deft, pleads Nil debet and the Jury finds
a Special Verdict That (Scale) the Prisoner escaped thro' the
BARRADALL'S REPORTS B65
Insufficiency of the Prison and not any Neglect of the Sherif
this was in August and in Feb. the Sherif obtained an Escape
Warrant and retook him before the Issue joined *and he was in
Prison at the finding of the Verdict and it is found the Prisoner
appeared publickly at K. G. Court house where he lived 2 or 3
Court Days after the Escape and whether this Retaking shall
excuse the Escape is the Question.
It is sayed in some Books that the retaking must be before
the Action brought or it shall not excuse. But other Books
are that a retaking before Issue joined shall excuse Wi. 35.
And seems not denied Cro. Ja. 657. And this Opinion seems
most reasonable for it will be hard upon the Sherif especially in
this Country where a man escapes thro' the Insufficiency of the
Prison as this Case is and against the Will of the Sherif that he
must be liable if an Action is immediately brought as it may be
the same Day tho* he afterwards retake the Prisoner upon fresh
suit.
But it will be sayed fresh suit was not made in this Case.
The Sherif did not take out an Escape Warrant till 6 months
after But what is the Escape Warrant to the Purpose the Sherif
might make fresh suit without such Warrant and take him in
any other County by the Common Law and the Escape Warrant
which is given here by 11 Geo. 1. is only in aid of the Sherif
and Pit. Therefore it is no Proof that he did not make fresh
suit because he did not sue out an Escape Warrant sooner.
Neither is there any Thing in that that the Prisoner appeared
publickly at the Court house of another County the Sherif
might be pursuing him elsewhere and is not to be presumed
knowing of what passed in another County. As to the Distance
of time between the Escape and Retaking there is nothing in
that he might be taken a Year after the Escape God b. 177.
As it does not appear then that the Sherif did not make fresh
suit it ought to be presumed he did For as Escapes are so penal
to Sherifs the Judges ough to make such favourable Construc-
tion as the Law will permit in Favour of Sherifs who are the
Officers and Ministers of Justice and the Judges will never judge
one to make an Escape by any strict Construction 3 Rep. 44.
Boyton's Case.
And these are certainly very hard Actions upon the Sherif
They have always been thought so in this Country and I am
mistaken if Sherifs have not been excused where the Escape
B66 VIRGINIA COLONIAL DECISIONS
was thro' the Insufficiency of the Prison without the Sheriffs
fault without any Retaking. Much more here then.
[63] The Pit. not injured having the Effect of her Execution
viz. the Body of the Debtor. Most reasonable everyone should
bear his own Burthen.
In this case it was adjudged the Retaking would not excuse
the Sherif and the County Court's Judgment was reversed.
The King ag't Harrison.
s. C. Jeff 60.
The Deft, was presented by the Grand jury for erecting Gates
in the King's Highway. The Deft, pleaded a Licence from
the County Court To which Mr. Attorney demurred And upon
Argument insisted that all Gates erected in the Highway are
Nuisances at the Common Law and that the County Cotirts
here had not Power to give Licence to erect a Nuisance he cited
Cro. Car. 184 See also 1 Jo. 22 L 1 Bui. 203. 2 Ro. A. 137. &
Hawk. P. C. 199. 9. 212. 50. For the Deft, it was urged there
was a great Difference between England and this Country as to
this matter Travellers here ^are not so numerous nor Wheele
Carriages very common So that the Inconvenience could be but
small And on the other hand considering the manner of fencing
here a small piece of land would be rendered useless if Gates
were not allowed. It was further urged that the Act of the 4.
Ann. cap. 39. did seem to give the County Courts a kind of
absolute Power with respect to Roads.
The Court was unanimously of Opinion that the Plea was good.
OCTOBER COURT MDCCXXXVII.
Major ag't Dudley in Cane,
S. C. Jeff. 61.
A Bill was brought against the Deft, who had married an
Executrix that was dead for an Account of the Testator's Estate
come to his hands. The Deft, about twenty years before had
exhibited in the County Court on Account of Debts and Dis-
bursments paid out of the Testator's Estate to which he made
Oath And the same was received and recorded without any
Examination into the Truth of those Payments As the children
of the Testator came of Age they severally petitioned the County
BARRADALL'S REPORTS B67
Court and some of them brought Suit to have their Share of the
Father's Estate. Upon which Petitions and Suits several
Orders were made for Persons to settle on Account of the Tes-
tator's Estate And in all those Settlements the Account first
exhibited by the Deft, was allowed [64] as a good Discharge for
so much In the present Case it was referred to Persons to settle
an account of the Estate who having some Doubt about allowing
this Account they prayed the Opinion and Direction of the Court
The Court was unanimously of Opinion for allowing the
Account in Regard to the Distance of Time tho' the Deft, had
not one Voucher to produce And as to the Length of Time
The Transaction was of little more than twenty Years standing
and the suit had been depending ten Years.
Haywood & aV ag't Chrisman & al in Cane'.
S. C. JefE. 62.
Henry Haywood possessed of divers Slaves and other Estate
by his Will inter al* devised the Guard'nsp of his Children to
his Wife and left five Slaves to work and maintain his Wife
and Children besides the profits of the Estate he had left them
and died without making any other Disposition of these five
Slaves leaving Henry his eldest son who dying before his Mother
devised the Slaves to the Defts. who after the Mother's Death
recovered them in an Action at Law and now a Bill is brought
by the younger Children of the first Testator for a share of the
Value of the said Slaves.
For the E^ts. it was insisted that by the Act of the 4. Ann.
23. they were intitled to a Share of the Value their Father being
intestate as to these Slaves.
For the Defts. it was said that there was an Exception in the
act of the Widow's Dower the Value of which was not to be
divided among the younger Children And that these Slaves
were intended by the Testator in Lieu of the Widow's Dower
and therefore not to be divided. And of that Opinion were the
whole Cotirt.
B68 VIRGINIA COLONIAL DECISIONS
APRIL COURT MDCCXXXVIII.
Godwins ag*t Kinchen*s Ex*rs in Cane.
Matthew Kinchen by his Will after several particular Legacies
thus ** and all the rest of my Estate Goods and Chattels whatso-
ever I give to my Brother W'm Kinchen and my three Sisters
Eliza Martha and Patience and James Godwin's three children
James Martha and Matthew " The Question was what Share of
the Residue Godwin's Children (the Pits.) were intitled to
They claiming each a seventh Part and the Defts. insisting they
were intitled to no more than a fifth among them.
[65] Godwin's Children were bom of a Sister of the Testator's
who was dead and the Writer of the Will proved that after the
Tes'tor had directed several particular Legacies he ask'd him
how he would dispose of the Rest of his Estate Upon which he
answered I give it to my Brother and Sisters And after some
Pause added and James Godwin's 3 little Children I can't abide
to leave them out put them in for a Share Godwin having four
Children then living the Writer ask'd which 3 Upon which the
Tes'tor named them (The other Child was so ill his Life was
despared of) There were other Witnesses in the Room w^ho
heard the Tes'tor say Put (Godwin's Children in for a Share or
to that Purpose.
Needier for the Pits. This is a joint Devise And so all the
Legatees equally interested It differs from the Case of Tucker
V Tucker's Ex'ors (post page) Here are not the Words equally
divided and the Children here are described by .their names
which they were not in that Case Where the Law determines
the Force and Operation of a Devise the Tes'tor's Intention is
not to be enquired into That is only to be recurred to where the
Words are ambiguous. Here the Words are very plain to make
it a joint Devise and Construction ought to be made upon the
Words and the Legal Intent of the Tes'tor as appears by Cox &
Quantock 1 Ch. Ca. 238. where it is say'd that when the Intention
is secret and not declared the secret Intent must give way to the
Legal Intent There is a Difference where the Children are not
described by their names and where they are In the first Case
they must take collectively as in Tucker and Tucker's Case but
not in the second As to the Proof in the Case the Witnesses vary
I admit that parol Proof is sometimes allowed to explain a
BARRADALUS REPORTS B69
Tes'tor's Meaning But that is only where it is to corroborate
and strengthen the Legal meaning and Intention not where it
is to oust it.
Barradall for the Defts. Upon the Words of this Will it is
plain enough that Godwin's Children are to be taken Collec-
tively as one Person and were so intended by the Tes'tor But
when the Proof and other Circumstances in this Case are con-
sidered I think the Point is put beyond all Doubt or Question.
It is argued on the other Side that this is a Joint Devise and that
therefore all must take equally. The Question here is not whether
the Legatees take jointly or severally but what Proportion the
Tes'tor intended to each To talk then of a joint Devise may
serve to amuse but proves nothing to the Point in Question I
own this Argument is quite unintelligible to me. If by being a
Joint Devise is meant that the Legatees take as Joint tenants
and consequently that the Right of Survivorship will take place
between them I deny that it is a Joint Devise in that Sense for
there can be no Survivorship among these Legatees as is proved
by the Case of Cox & Quantock cited on the other side If God-
win's Children had not been named it is agreed they must have
taken collectively as one Person [66] I ask then whether this
Devise might not as well be called Joint in that case as it is now.
The naming of the Children can certainly make no Difference. It
is a very strange and new Doctrine to say that the Tes'tor's
Intention is only to be regarded Where the Words of a Will are
doubtful The numberless Cases and perpetual Controversies
there are upon the Subject of Devises are sufficient Confutation
of such an assertion. Do not our Books tell us that the Intention
of a Testator is the Pole star to direct us to find out his Meaning
But it is sayed this Intention when secret is not to prevail
against the express legal Intent. I do not well apprehend the
Force of this Distinction nor remember to have seen it anywhere
but in the Book cited on the other side And I must observe that
it is only a Remark of the Reporter and the Case itself is quite
against his Argument. The Case is Cox & Quantock supra
Two were made Executors and the Residue devised to them
One died his Adm'r sued for a Moiety of the Surplus and decreed
for him for this Reason That the Tes'tor intended an equal
benefit to both. This is sayed to be to the Dissatisfaction of the
Bar And the Reporter adds his Reason which is so much relied
on in this Case. Tho' all the Authorities since agree with the
B70 VIRGINIA COLONIAL DECISIONS
Resolution in the Case and are against the Reporter's Opinion
vide. Is there any Thing more frequent in our Books than to
see the Intention of a Tes'tor prevail against ag*t [sic] the legal
Sense and Import of Words Indeed if the Intention be secret
as Mr. Needier States the Proposition I don't know how it should
prevail An Intention must be more or less apparent or it
cannot be known at all But if by a secret Intention is meant
an hidden or imphed one in Contra-distinction to that which is
expressed Then the Distinction is not true nor has any Fotmda-
tion in Reason or Authority.
I take it then the Testator's Intention is to be sought after
in this Case which if it be not sufficiently evident upon the Face
of the Will itself I think is put beyond all Controversie upon the
Proof and Circumstances
But I must first clear the Proof from some Objections It is
sayed the Witnesses vary There is no Kind of Variance [67]
except that one heard more than the other The Writer of the
Will who was nearest the Testator and most attentive heard
more than they who were at a Distance in the Room It is also
objected ag't the Proof in general that it ought not to be re-
garded at all being to oust the legal Intent And that Parol Proof
is never admitted but to corroborate and support the Legal
Intent This is another Distinction that I must own I am a
stranger to Neither can I agree that there is any express Legal
Intent in this Case It must be owned to be in some sort doubtful
upon the Words of the Will whether the Tes'tor intended the
Pits, should have each of them a Share or only one Share among
them And that Parol Proof and Collateral Circumstances are
admitted to explain a Tes'tor's Intent that appears doubtful
surely will not be denied. There being so many Cases express
in Point 2 Vem.99. 252. 506. 517. 593. 648. 673. & 675. It is for this
Purpose we offer our Proof and surely it must have its Weight
and if it has it can hardly remain a Doubt with any One that
the Tes'tor intended no more than one Share to the Pits.
I cannot imagine why the naming the Children by their names
should make any Difference as is much insisted upon tho* with-
out any Reason assigned that I have heard But this was necessary
to avoid the Force of the Determination in Tucker & Tucker's
case where indeed the Children are not particularly named But
admitting such a Distinction ought to prevail in General Cases
Here it can avail nothing because it appears the Occasion of
BARRADALL'S REPORTS B71
naming them was accidental and because Godwin had four chil-
dren. The Children of Godwin are not so nearlyrelated as the
other Legatees being only a Sister's Children It is a natural
Presumption that men have the greatest affection to their
nearest Relations If the Mother of these Children had been
alive can it be supposed the Tes'tor would have made so great
a Difference as to give three times as much to her as to the rest
of his Brothers and Sisters Much less Reason is there to suppose
he could intend so much for her children for whom he mu^t be
presumed to have a less Degree of Regard and Affection To put
them in the Place of the Mother was certainly all he intended
and to Consider them as her Representative. It appears too in
the Proof these Children were little in his thoughts. His manner
of taking Notice of them is a very strong circumstance to prove
he did not intend to so great an Advancement and Provision
so much beyond what he did for his own Brothers and Sisters.
Decreed that Pits, were intitled only to one Fifth among them
by the opinion of Lee, Tayloe, Lightfoot, Custis, Grymes & B3rrd
Carter & Diggs con. Robinson thought the Surplus ought to be
divided into Thirds viz. the Brother to have one Third the
Sisters another and Godwin's Children another. April 1738.
♦Vide 2 Will'ms 383. Blackler v. Webb.
[68] Andrew Giles & Mary his Wife & Mary Mallicote Pits.
S C. Jeff. 62.
Morey Mallicote Deft. In Detinue upon a Special Verdict.
The Pits. Father Thomas Malhcote by his Will devised ** to his
son John Quashey a Negro Man to his son Thomas the Child
his Negro Woman Betty then went with and Tomboy a negro
Man " and gives Slaves to his other Children and declares his
Will ** That his Wife should have the Work of his Sons Negroes
till they came of age And if either of his Children should die
without Heirs of their body lawfully begotten Then that their
Part should be equally divided between the Survivors" And
gives Negro Betty to his Wife during Life and after her Death
to be divided with her Increase among his children. The Testa-
tor's Sons John and Thomas are dead and would not be 21 if
now living The Slaves in Question are Quashey and Tomboy
Specifically devised to John and Thomas and Quashey a Boy
the Child Betty went with at the making of the Will but not born
B72 VIRGINIA COLONIAL DECISIONS
till after the Testator's Death The Pit. Mary the Wife of Giles
is the Testator's Wife named in the Will (tho' not so found in the
Verdict) And the Plaintif Mallicote is one of the Testator's
Daughters The Deft, is the Testator's eldest Son and Heir
and Heir to his Brothers John and Thomas and is more than 21
years old.
There are but 2 Questions in this Case upon the merits
1. First. Whether the Testator's Wife has a Right to keep
the Slaves devised to John and Thomas till the time they would
have been 21. Or whether her Interest determined at their
Deaths
2. Whether the Devise to Thomas of the Child Betty went
with be good tho' the Child was not bom till after the Testator's
Death And let these Points be determined either Way there will
remain a Necessity to make a 3. question Viz. Whether the Pits,
can join in this Action.
The Case as to the first Point is briefly this A man devises
Slaves to his Children and Wills that his Wife should have the
Work of them till his Children come of age The Children die
before they come of age The Question is whether the Wife's
Interest determines by their Death or Whether she shall keep
the Slaves till the Time the Children would have been 21. if they
had lived
It will be granted I presume that this Devise to the Wife
must be taken redendo singula singulis viz. that she is to have
the Work of the Slaves till the Children respectively come of
Age And that each Child as it comes of Age is intitled to the
Slaves given to it Cro. Ja. 259. Aylor & Chep. And it will be
further granted I believe that in Construction this [69] Devise
must be taken as if the Limitation was to the Wife first till the
Children come of Age and afterwards to them Indeed otherwise
the Devise to the Wife cannot be supported.
Now in Devises of this sort there is a very great Difference
where they are made for Paiment of Debts to maintain Children
or upon any other Trust and where they are merely for the
Benefit of the Devisee For if a Man devised Lands to his Exec-
utors till his Son comes of Age for Payment of his Debts or
Performance of his Will and then to his Son There tho' the
Son die before he come of Age the Interest of the Executors
does not determine but they shall hold the Land till such Time
as he would have been of Age if he had lived Boraston's Case
BARRADALL'S REPORTS B73
3 Co. 19. Di. 210. a. Cro. EUz. 252. 1 Ch. Ca. 113. But if a Man
devises Land to his Wife till his Son comes of Age and then to
the Son in Fee And the Devise to the Wife is not expressed to be
for Performance of his Will Education of his Children or for
any other particular Purpose but is purely for her own Benefit
In that Case if the Son die before 21. the Wife's Interest is
determined and the Land shall go to the Heir of the Son presently
Hill. 1713. between Mansfield and Dugard decreed Chr. Ca. Abr.
195. 4. The Reason of the Difference in these 2. Cases is plain
In Strictness of Law the Estate determines in both Cases For
if a Man makes a Lease or grants Land to another till his Son
comes of Age the Lease or Grant is subject to the Contingency
of the Son's living till that time If he dies before the Lease or
Grant determines Boraston's Case 3 Co. 19. b. Agreed per totam
curiam 6 Co. 35. b. Plo. 273. And this of Necessity for Grants
being taken strictly according to the Words, Unless the Estate
was to determine by the Death of the Son It must continue for-
ever for the Son will never be of Age Now the great Difference
between a Devise and a Grant is this that in a Devise a more
liberal Construction is allowed And it is not so much the Form
of Words as the Intention of the Testator that governs the Con-
struction But yet where there is no apparent Intention to the
Contrary a Devise as well as a Grant must be construed according
to the Legal Sense and Operation of the Words 1 Sal. 238.
Aumble & Jones And in such a Case no greater Interest will pass
by a Devise than would pass by the like Words in a Grant The
Resolution in Boraston's Case (supa) is founded upon the In-
tention of the Testator collected from the Nature and Manner
of the Devise The Case was '* A Devise to Executors, till H. B.
should accomplish his full age of 21 years and the mean Profits
to be employed by the Executors towards Performance of the
Will " It was say'd it should be presumed that the Testator had
computed that the Profits of his Estate by the Time his Son
would be of Age would pay his Debts and therefore tho' the Son
died before The Executors should hold the Land till such Time
as he would have been of Age because otherwise the Testator's
Intention in providing for the Payment of his Debts must be
frustrated his Debts unpaid and his Will unperformed which
are certainly very strong and cogent Reasons to induce such a
Construction of the Will And so where the Devise is for any
other particular Purpose as [70] the maintainance of Children
B74 VIRGINIA COLONIAL DECISIONS
or the like it may be reasonable to make such a Construction
But where the Devise is general no Trust to be discharged but
purely for the Benefit of the Devisee There is no equitable
Ground or Motive to induce a more ample and liberal Con-
struction than according to the legal Import and Operation
of the Words Nor any Intention of the Testator appearing to
carry the Devise further than the Words in their legal Sense will
carry it And this I take to be the Reason in Mansfied & Dugard's
Case (Supra) And upon which Distinction Boraston's Case and
that are reconciled
That Case was thus ** A Man devised Lands to his Wife till
his Son should attain his Age of 21. and then to his Son and his
Heirs The Son died at 13. and tho* the Wife was Ex*x yet it
not being devised for Paiment of Debts nor any Cred*rs or Want
of Assets appearing the Lord Chancellor (Harcourt) held that
the Wife's Estate determined by the Death of the Son and upon
a Rehearing continued of the same Opinion."
I will beg Leave to read Boraston^s Case and This Now the
Devise before us is exactly the same as this last only here the
Slaves are devised first to the Children and then to the Wife
But in Construction as I have already observed the Devise to
the Wife must be taken first The Devise in this Case is generally
to the Wife No Debts to be paid or any other Trust discharged
but meerly for her Benefit And she is also made Executrix
No two Cases can be more parallel in all their Circumstances
and I hope my Lord Chancellor's Opinion will be taken for good
Law especially when the Reason of the pifference between a
Devise of this sort and a Devise for Paiment of Debts (as Bo-
raston's Case and the other above cited are) is so clearly ac-
counted for.
I shall now proceed to consider the 2. Point Whether the De-
vise of a Negro Child in the Mother's Belly be good tho* the
Child is not bom till after the Testator's Death.
The Objection I suppose will be that the Thing given was not
in esse in Reum natura at the Time of the Devise And so being
no more than a Possibility is not devisable
I shall agree that Possibilities which are remote are not de-
visable but I take a Difference between a near and a remote
Possibility (Jacob's Dictionary verbo Possibility) It was never
yet questioned but that the Profits of Land might be devised
for a Time And in this very Will the Work i.e, the Profits of
BARRADALL'S REPORTS B75
the Work of the Slaves are devised to the Wife for a Time
Now the Profits are not in esse they are but a PossibiUty So
the Profits that shall be made of a certain Commerce may be
devised and I can see no Difference between Devises of this
Sort and the Devise of a negro Child that shall be born especially
when the Child is actually [71] in ventre sa mere for then it has a
Sort of Existence anciently it was Murder to procure the De-
struction of such Foetus and the Law takes notice of a Child
in ventre sa mere for a Devise to such is good and tho' it be but
a Possibility it must be allowed to be a very near Possibility
and must happen in a short Time For my part I can see no
good Reason Why such a Devise should not be good It clashes
with no Rule of Law that I know of nor is attended with any
Inconvenience Why then should not the Testator's will be
performed But I would not be understood as if I contended
for carrying Devises of this Sort any further than where the
Child is actually in the Mother's Belly It would be very in-
covenient to allow a Devise of the 2. 3. or 4. Child that shall
be bom for Reasons that are very obvious. Tho' even such a
Devise as that is allowed by the Civil Law for a Man may devise
Qtiidquid ilia ancilla perperisset 2 Dom. 159. S. 18. And it is
clear from the same Author that the Civil Law admits of Devises
of Things that are not in esse as the Fruits of a Farm the Profits
of a Commerce and the hke Now it may be worth considering
that in England Legacies are properly recoverable in the Spiritual
Court where the Civil Law is the Rule of Decision Tho' the
Chancery for many years has exercised a concurrent Jurisdic-
tion with them But then the Chancery has some Regard to the
Determinations of the Civil Law in Matters concerning Legacies
as that noted Distinction between a Legacy given to one at
the age of 21. and where Legacy is made paiable at 21. which is
allowed to have a very slender Foimdation in Reason but because
the Distinction is kept up in the Civil Law the Chancery observes
it too that the Subject may have the Same Measure of Justice
in which Court soever he sues. Ch. Ca. Abr. 295. 2. in Notis.
And I humbly hope that this Court will pay the same Regard
to the Decisions of the Civil Law in Matters concerning Legacies
at least so far as it is not inconsistent with the Spirit of our
Laws nor attended with any Inconvenience And then it is mighty
clear that the Devise of a Child in Ventre sa mere is good But
here as I sayed it will be necessary to stop and not to suffer
B76 VIRGINIA COLONIAL DECISIONS
Devises of this sort to be carried any further because of the In-
convenience that will follow
I shall now speak to the 3. Point Whether the Pits, can join
in this Action for this must of Necessity be made a Question let
the merits be determined either way because the Pits, have
several and distinct Rights If the Merits are determined ag*t
the Deft. Then the Pits. Giles and his Wife have a Right to the
Slaves in Question and the Pit. Mallicote has no Pretence of
Right But if the Merits are with the Deft. Then the Pits. Giles
and his Wife have no Right but the Pit. Mallicote does pretend
some Right in that Case.
Upon the very State of the Question the absurdity appears of
joining the Pits, in this Action for they cannot have both a
Right to recover but if one has a Right the other has not
This is really a new kind of [72] Policy and the first Time I
believe it was ever pratised It is having two Strings to the Bow
If we can't recover by one Title we will by the other But I
doubt the Consequence will be that they will recover by
neither
There is no Instance in the Law that I know of where two
persons having distinct and several Interests can join in an
Action But it is a com'on Exception in Arrest of Judgment
where two join to object that their Interests are several as Di.
320. a. Stil 203. 2 Lev. 24. 3 Lev. 362. But if there was no
Authority the Reason of the Thing speaks plain enough If
Judgment be given for the Pits, it must be that the Pits, recover
But will the Court give such a Judgment when one of the Pits,
has no Right to maintain the Action Who shall have the Damages
in this Case not he I hope that has no Right to recover them
Yet if any Judgment is given for the Pits, they will both have
an equal Right to the Damages Besides who can tell for whom
the Jury intended these Damages Perhaps they might be
intended for the Person who has no Right to maintain the Action
And is there any Reason then that the Deft, should pay. The
Damages here were certainly designed for Giles and his Wife
but if they have no Right to maintain the Action Ought they
to have any Damages I need say no more in so plain a Point
especially as it is no new Objection in this Court Even in the
Case of an Ejectment where one of the Lessors had no Title
Upon such an Objection the Court would give no Judgment
It has been twice so adjudged as I have been told in the Cases
BARRADALL'S REPORTS B77
Meachen & others ag't Burwell and Dewberry & Others ag't
Smith.
But if the Pits. Giles and his Wife have no Right as I hope
it is clear they have not the Pit. Mallicote has really no Right
at all Or if she has it is not such a Right as will maintain an
Action of Detinue The Title she sets up is under the Remainder
limited by the Testator's Will to the surviving Children In
case of the Death of either without Heir of their Body Now
this Rem'r I conceive is void being limited upon too remote
a Contingency viz. a Dying without Issue which may not happen
in 1000 years And no limitation of a Chattel can be upon a
Contingency unless the Contingency is to happen within the
Compas of a Life or Lives in Being or within a reasonable number
of years as 20. or 30. 1 Sal. 229. But this Point was settled in
the Case of Slaughter & Whitlock argued last Court (posted)
where Slaves were devised to one and if he died without Issue
Rem'r over It was adjudged the Rem'r over was void and the
absolute Property vested in the first Devisee so that the Deft,
as Heir at Law to his Brother is solely intitled to the Slaves
in Question.
Or admitting this Pit. has a Right it is no more than as Tenant
in com'on with her other Brothers and Sisters [73] The
Rem'r is limited to be equally divided between the Survivors
Now surely no Lawyer will say that one Tenant in Com'on of a
Chattel can maintain an Action of Detinue ag't the other Tenant
in Com'on where there are only two much less where there are
more than two as in this Case Every one of them has the same
Right that the other has and by the same Rule that the Pit.
Mallicote can maintain this Action ag't the Deft, if she recovers
another of the surviving brothers or Sisters may recover of her
and the Deft, again may recover of that Brother or Sister or
even of the Pit. herself, and so there would be no end to suits
and Controversies. This sufficiently shews the Reason of the
Law why one Tenant in com'on shall not have an Action at
Law ag't the other 1 Inst. 200. a. The Remedy must be in
Equity Indeed that Remedy is pointed out by the Act of
1727. c. 11. S. 18.
This Case was compromised and so no Judgment given.
I
B78 VIRGINIA COLONIAL DECISIONS
■
OCTOBER COURT MDCCXXXVIII.
Faldo for Seymour Powell and Ann his wipe ag't Thurmer
In Ejectment.
Argol Ransha seised of 300 acres of Land died intestate leav-
ing two Daughters Ann and Sarah to whom the same descended
Ann married George Jackson and had Issue by him Ransha
George Sarah and Ann Ransha Jackson being seised of a
Moiety of the said 300 Acres by Descent from his Mother devised
the same by his Will to Rob. Thurmer who had married his
sister Sarah for their lives Rem'r in Fee to their Son George
Thurmer and died without Issue which Moiety is the Premes in
Question Sarah Thurmer had no other Child but George before
named And the said Robt. Thurmer Sarah his Wife and George
their Son are all dead George leaving no Issue and dying in
1725. George Jackson survived George Thurmer and is dead
without Issue but Robert Thurmer survived him Ann the
other Daughter of Geo. and Ann Jackson is one of the Lessors
and as Aunt and Heir at Law of Geo. Thurmer claims the
Premises.
George Jackson the Son before the Death of George Thurmer
viz. in 1723. by Deed in Cons, of £lQ. sells to Robt. Thurmer all
the Right Title and Interest which he then had or should have
at any Time thereafter to all the Land that formerly belonged
to Argol Ransha The Deft, is Heir at Law to Robt. Thurmer
and sets up a Title under this Deed So that
Che Sole Question in this Case is whether this Deed from
George Jackson made at a time when he had no Estate Right
or Interest can operate at all to Convey the Right which after-
wards accrued to him upon the Death of George Thurmer Whose
Heir he was For if Nothing passes by this Deed the Title of
the Lessors is clear both as Heir of George Thurmer and George
Jackson.
[74] It is really admirable that any Lawyer will offer to
argue so clear a Point and contend ag't a Maxim and Rule of
Law viz. That a Possibility cannot be granted over or released
1 Inst. 214. a. Which is as well known and as settled a Point
as that the eldest Son shall inherit In Westminster Hall I am
sure the Court would not suffer an Argument to be made.
BARRADALL'S REPORTS B79
When this Deed was made Robt. and George Thurmer were
both alive Robert had an Estate for Life and Geo. the Rem'r
in Fee What Right or Interest then could George Jackson
have It is true he was presumptive Heir to his Nephew and
so had a PossibiHty of having the Land upon his dying without
Issue But this PossibiUty could not be granted over or re-
leased as I have sayed. There is a great Difference between
a bare Possibility and a future Interest that will certainly happen
one Time or other as a Reversion or Rem'r expectant upon the
Determination of any particular Estate As in this Case after
the Death of Geo. Thurmer George Jackson as Uncle and Heir
to him had a Rem'r in Fee expectant upon the Death of Robert
and Sara Thurmer and without doubt after George Thurmer's
Death might have granted or released his Interest but having
no more than a bare Possibility during Geo. Thurmer's Life
he could not grant or release that but his Deed is absolutely
void And if he himself had survived Robt. Thurmer the Tenant
for Life he might have entered into the Land against his own
Deed.
It must be owned there are Words sufficient in this Deed to
carry a future Right if the same was grantable ** All the Estate
&c. that I shall have hereafter" Littleton in his chapter of
Releases Sect. 466. takes Notice that such Words are usually
put in Releases but says they are no Effect because no Right
passes but that which the Releasor hath at the Time of the
Release made This he illustrates by putting the following
Case If there be Father and Son and the Father is disseised
and the Son Hving the Father releases to the Disseisor all the
Right which he hath or may have Yet after the Father's Death
he may enter upon the Disseisor ag't his own Deed for nothing
passed by it All the Right when he made the Deed being in His
Father I suppose there is the same Reason between any other
Ancestor and Heir as between Father and Son And then thir
Case is exactly Ovirs except as to the Disseisin George Thurmes
and George Jackson were Ancestor and Heir George Jackson
releases or grants it is the same Thing in the Life of George
Thurmer This Deed I say is Void and nothing passed by it
because all the Right at the Time [75] of the Deed was in George
Thurmer I think the Cases are exactly parrallel.
There are besides an infinite number of Cases in the Books
where it has been adjudged that a PossibiUty cannot be granted
B80 VIRGINIA COLONIAL DECISIONS
over assigned or released 4 Rep. 66. b. In Fullwood's Case 10.
Rep. 47. 48. Lampet's Case 3 Lev. 427. Bishop & Fountain
1 Inst. 265. b. But it is mispending Time to say more in so
clear a Point I shall therefore only just observe the Reason
and Policy of the Law in not admitting a Possibility to be trans-
ferred and it is upon the same Ground that a Thing in Action
shall not viz. for avoiding of Maintainance Suppression of Right
and Stirring up of Suits 1 Inst. 214. a. which are certainly excel-
lent Reasons and shew the Wisdom and Justice of the Law in
discountenancing and prohibiting every Thing that may have
a Tendency to such Mischiefs
Judgment for the Pit.
APRIL COURT MDCCXXXIX.
Harrison ag't Halley
s. C. Jeff. 58.
A judgment having passed against the Deft, and Pit. as
Sherif The Pit. had an Attachment upon the Act of Assembly
against the Defts. Estate And it was against his Lands as well
as Goods The Coroner returned that the Deft, had no Goods
and that he had attacked a Parcel of Land Upon Which the Pit.
had Judgment and the Land ordered to be sold as Goods taken
on a Fi. fa.
B. This is the first Attachment that has been granted against
Lands since the Stat. 5 Geo. 2. For the more easy Recovery of
Debts in the Plantations Upon the Equity of which this Practice
is founded
Boys ag't Hoggatt
An Action was brought Upon a Bill of Exchange protested
more than 20 years ago The Deft, pleaded he owed nothing
and at the Trial insisted that Paiment ought to be presumed at
such a Distance of Time according to Holt's Opinion 6 Mod. 22.
The Jury found for the Deft.
See ante. 49. Anon.
[76] Webb ag't Elligood Appeal from New Kent
s. C. Jeff. 69.
This was an Action ag't the (Appellant) Sherif for an Escape
and upon a Special Verdict The Case was the Pit. (Respondent)
BARRADALL'S REPORTS B81
had judgment against one Gilmet in Custody and prayed him
in Execution He had been 32 days in Custody before at
another's Suit and the Sherif knowing him to be insolvent
demanded of the Plt.'s Attorney Security for the Prison Fees
who refused to give him Security and thereupon the Sherif
discharged him.
The Question in this Case was whether the Sherif was obliged
to keep him 20 days before he discharged him And the Court
was of Opinion that he ought to have done so and affirmed the
County Court's judgment.
Rogers adm'x of Rogers ag't Spalden
S. C. Jeff. 69. Mercer.
The Pit. living in England had taken Proofs of her Debt by
Affidavit before the Lord Mayor of London pursuant to the
Act of Parliament of the 5. Geo. 2. For Recovery of Debts in
the Plantations
And now upon the Trial these Affidavits were offered in Evi-
dence But it was objected that when they were taken No suit
was depending And the Act only extended to Cases where
suits were actually depending And it was sayed the Deft, ought
to have Notice And of that Opinion was the whole Court except
Grymes and Digges And so the Affidavits were not allowed to
be given in Evidence
The Pit. appealed
Dunn & al ag*t Wythe Et Econ. In Chanc,
Samuel Simmonds by his Will gives his his [sic] Wife all his
Real and Personal Estate during her Widowhood And if she
marries then he gives one Half of his Estate to Dan'l. Dunn's
Children and the other half to Matthew Noblin's Children And
makes his Wife Executrix who lived several years and never
married and is now dead The Question is,
Whether Simmond's Estate shall go to Dunn's and Noblin's
Children by Force of the Devise or as next of Kin or to the
Wife's Executor
They cannot take by the Devise being limited to them upon
a Contingency that never happened viz. the Wife's marriage.
The Question then is Whether after the Wife's Death the Estate
shall be distributed among the next of Kin Or Whether the Wife
B82 VIRGINIA COLONIAL DECISIONS
gained an absolute Property by the Devise to her and being
made Executrix.
And I conceive as the Case is the Wife gained an absolute
Property by the Devise or if not yet she shall take as Ex*x to her
own use and not [77] as a Trustee for the next of Kin
I shall agree that if the Wife had married the Limitation over
to the Pits, upon that Contingency had been good and they had
been well intitled but that not happening It is quite out of the
Question any further than that it may serve to shew the Tes-
tator's Intention I shall therefore consider this meerly as a
Devise of Chattels during widowhood without any Rem'r over
for I take it there is no Difference between a Rem'r upon a
Contingency that never happened and no Rem'r at all
Under this View I conceive the absolute Property vested by
the Devise during Widowhood The Gift of a Chattle for an
Hour is a Gift forever There is no Instance where a Devise
for Life has been adjudged to pass only the Use tinless there
was a Rem'r over. But if we have not the absolute Property
by the Devise We certainly have as Ex'x And the next of Kin I
conceive can never be intitled as the Case is The making of Man
Ex'or is a Gift of Personal Estate in Law But it must be owned
that since the Restoration and making the Statute of Distribu-
tions there are several Instances where a Man has disposed of Part
of his Estate and taken no Notice of the Residuum that in Equity
the Executor has been taken as a Trustee for the next of ICin and
that the Executor should not have it. But there are many
Cases too where it has been adjudged for the Ex'or against the
next of Kin especially where the Wife is made Executrix So that
there is no General Rule. It depends altogether upon the
Circumstances of the Case and the Intention of the
Testator.
1 Inst Foster & Munt by Jefferies 1 Vem.
But this Case does not seem to be within the Reason or Rule
of any of the Cases in the Books on this subject. They are all
where some part of the Estate is disposed of and other Part left
entirely undisposed Whereas here the Disposition to the Wife
is of the Whole Estate and there is properly no Residuum undis-
posed of There is no Instance in the Books of a Question of this
Kind But admitting there is no Difference as to this Point
We are then to consider whether it can be supposed to be the
BARRADALL'S REPORTS B83
Testator's Intention that the Ex.trix should not have the
Residue
It will be said that the giving a particular Legacy makes a
strong and violent Presumption and Implication that the Tes-
tator intended no more and it is true that in many Cases it has
been so adjudged But I deny it to be a tuiiversal Rule And
that in many Cases especially where the Wife has been Ex'x it
has been determined that the Wife should have the Surplus
notwithstanding she had a particular Legacy as Ball and Smith
2 Vem. 675. Smith devised to his wife some plate and goods
she had as Ex'x of a former Husband The Surplus decreed
to her principally because it could not be presumed the Testator
intended only an Office of trouble to the Wife but rather of
Benefit to take the Surplus Batchelor and Searl Gibb. Rep. 127.
where two Strangers were Executors and had a Legacy for
mourning and one of them a Horse and Furniture Yet Surplus
decreed for them And there sayed that in No Case unless the
Implication was Violent and such as could not be resisted the
Ex'ors ought to be shut out of the Surplus which belonged to
them as representing the Testator And for many ages they were
intitled to it by Law Lady Glanvel and the D — ss of Beaufort
2 Vem. 648. Devise to the D— ss of the Use of the Table
[78] Plate and made her Ex'x Surplus decreed to be distributed
but reversed in the House of Lords because she had only a
Special Property Mo. Cha. Ca. 10. This our Case exactly
Griffith and Rogers Ch. Ca. Abr. 245. 8. Wife had some books
devised. This did not exclude her from surplus. Jones and
Westcomb Ibid. 10. Devise to Wife of a Term for her Life and
after her Death to the Child she was then enseint with Adjudged
this Devise did not exclude her from the Surplus.
No Instance where Surplus taken from a Wife Ex'x except
Darwell and Bennet cited in Ball and Smith and there two
Strangers were Ex*ors with the Wife and Ward and Lane cited
ibid, where a Man lived 20 years after making his Will and
acquired a great Estate which went upon another Reason viz. a
presumed alteration of Mind with that of Circumstance.
From these Cases it appears there is a great Difference.
Where the Wife and where a Stranger are made Ex'ors There
is no Instance but in the two last cited where the Surplus has
been taken from the Wife And they are very particular
The Reason of the Difference I take to be grounded upon this
B84 VIRGINIA COLONIAL DECISIONS
Distinction that where Strangers are made Ex'ors There is
Room to presume he intended no more than What is particu-
larly devised as not being supposed to have that affection for a
Stranger as his Relations, But where the Wife is Ex'x he is
presumed to have a larger Share of Affection for her than any
Relation and so no Reason to take the Surplus from her.
The great Reason why when a particular Legacy is given
to the Ex'or the Surplus shall be distributed is from an implied
Intent in the Testator not to give more than he has mentioned
Upon this Ground I conceive there is in this Case as strong an
Implication to oust the next of Kin For he devises to them only
in Case his Wife marries Which may as well exclude them from
taking in any other manner as the Executor because of a par-
ticular Legacy The Implication I say is as strong that the
Testator did not intend them any Part of his Estate but upon
that Contingency which never happening they are utterly
excluded If he had intended they should take after his Wife's
Death it was an easy matter to express it.
So that here is Implication against Implication and the legal
Title being in the Ex'or the Determination ought to be in his
favour It being a Rule that Law and Equity shall prevail against
Equity alone.
It is allowed that the Intention of the Testator is to govern in
these Cases and the Intention is to be collected from the Words
of the Will I must submit Whether the Intention be not very
plain that the Pits, should not take [79] unless his wife married
and I conceive that his giving to his Wife during Widowhood
and limiting over in Case of Marriage And then making her
Ex'x is the same as if he had sayed In case she does not marry
she shall have all For the making of a Person Executor in
Judgment of Law is a Gift of the whole Personal Estate There
could be no use in making her Executrix but to that end There
being no Legacies and all given to her Some men we know are
very solicitous about their wive*s marrying a second Time and
lay them under Restraints And it will be no unreasonable con-
struction of this Will to suppose that was this Testator's Intent
It is very consistent with the Words of the Will that by making
her Ex'x he did intend she should have all in Case she did not
marry Here was no Child so Wife was intitled to half By
acceptance of Will she is in a Worse Case.
On the other side it was argued that this Devise to the Wife
BARRADALL'S REPORTS B85
during Widowhood gave only an Estate for Life and so only
the Use passed That the Testator's Intention was that the
children should take upon the Wife's Death or Marriage.
But the Court were of Opinion that the Wife's Ex'or was well
intitled principally as I took it upon the Intention of the Tes-
tator which they took to be that if the Wife did not marry she
should have the whole Estate For the Pits. viz. Dunn's Children,
Randolph Grymes, Carter and Lightfoot For the Deft, the
Wife's Executor Lee, Tayloe, Robinson, Digges, Byrd and the
Governor.
B. There were Slaves as well as personal Estate but no
Difference was made.
TiMSON ag't Robertson
Samuel Timson by his Will devises the Premises in Question
to his son John and if he died within age or without Issue Rem'r
over.
John entered lived to be 21 and by his Will devised to William
Timson and died without Issue.
William died without Issue in 172G, 23 years old Lessor [sic]
is his Heir
The Questions are 1. Whether John had an Estate tail or
Contingent Fee. 2. Whether Pit. barred by Act of Limita-
tion
The Testator certainly intended an Estate in Fee on Contin-
gency of living to be 21. or having Issue.
If it be construed an Estate Tail as that Estate would be
determinable on the Death of Devisee before 21. It will follow
that if he had died before 21 and left Issue That Issue would be
disinherited which the Testator could never intend.
The Word Issue in a Will is not always a Word of Limitation.
It is sometimes and often taken as a Word of Purchase as
Designatio personcB. Here it was only made Use of to shew
where the Testator [80] intended the Estate given to John should
determine viz. if he died under age or without Issue then the
Estate was to go over The dying without Issue here are Words
of Determination.
Fitzg. 20. 21. and sometimes as Word of Determination.
If the Word (or) here can be taken for (and) it will be mighty
clear Then it will run if he dye under age and without Issue
B86 VIRGINIA COLONIAL DECISIONS
In Price and Hxmt Poll. 645. in a Devise of this Sort it was so
taken Devise to his Son and his Heirs and if he dye before he
attain 21 or have Issue of his Body living Rem*r over the Son
Uved to 28 and dyed without Issue In a Dispute between the
Heir of the Son and the Rem'r man it was adjudged for the Heir
that the Son had a Fee subject to two contingencies Either of
living till 21 or having Issue and one of the contingencies having
happened the Rem*r could never take Place and there argued
that the Word (or) must be taken for (and) as in Lowell and
Gerrard's Case there cited Cro. EUz. 525. Mo. 422.» Devise to his
Son and his Heirs and if he die within age or without Issue
Rem'r over He died before 21 but left Issue And between the
Rem*r man and Issue adjudged for the Issue as Heir of his
Father and that (or) should be taken for (and)
By the Report of this Case in Croke it seems as if the Judges
took it to be an Estate-tail and so is a Case against us But that
does not appear in Moor and the Judgment does not prove it
because if it was a Contingent Fee the Deft, had Title as Heir
to his Father the Devisee as well as if it was an Intail.
Tilly & Collier 2 Lev. 162. Devise to daugh'r and if she die without Heir before
21. to another daugh'r sayed to be an Estate tail Bed 2 vid. Cases cited there in
Margin.
Then this Case is Old & Several Resolutions since contrary
to it. Hanbury and Cockerel 3 Danv. 179. 4. Devise to his
two Sons in Fee provided if either die before marriage or before
21. and without Issue Rem'r to Survivor Adjudged no Estate
tail but a Fee on Contingency
Hall & Deering Hard. 148. Before 21 and Without Heirs of
his Body agreed to be a Fee but no Judgment.
CoUenson & Wright 1 Sid. 148. Before 21 and without Issue
adjudged a Fee Contingent.
Sommers & Gibbon Skinner 144. Devise to his Son and his
Heirs and if he die without Issue unmarried to his Daughter a
Fee in the Son
In all these Cases the Words dying without Issue are not taken
as Words of Limitation but as Words of Contingency or Deter-
mination to shew where the Estate first given should determine
and the other commence viz. If he happen to die not having
Issue And in Consequence if he happen to have Issue the Con-
tingency falls and the first Devisee has a Fee and the Rem'r can
never take Place.
BARRADALL'S REPORTS B87
[81] These Cases axe the same with Lowell and Gerrard only
the Word (and) is here instead of (or). But (or) in that Case
was construed to be (and) as well as in Price and Hunt and so
the Reason that governed the Cases the same
Burgis and Hack in this Court April 1736. Devise to his Son
and Daughter and their Heirs and in Case of the Mortality of
either before 21 or Day of Marriage of the Daughter or without
Issue the Whole to the Survivor And if both die before 21 or
without Issue Then to the Testator's Right Heirs adjudged a
Fee Contingent. In the principal Case this was adjudged an
Estate tail upon the Authority of Lowell and Gerrard having
been so adjudged above 20 years ago in this Court.
B. The Pit. was certainly barred by by the Act of Lim. tho
the Court gave no Judgment on that Point.
For the Pit. For the Deft.
Lee Lightfoot Tayloe
Randolph Custis Grymes
Robinson Carter Digges
Blair Byrd and the Governor
GooDLOE ag*t Dudley &c Appeal from Caroline
s. C. Jeff. 69.
Bond from Undersherif and Securty to pay 1500 lbs. Tobo.
and save harmless and indemnifie High Sherif &c. Deft, pleads
Stat 5. & 6. E. 6 against buying and selling Offices and avers
the 1500 lbs. Tob*o was for the Deputation of Deft. Pit. demurs
I believe this is the first Time the Office of Sherif has been
thought to be within this Stat. For tho' it may seem to come
within the general words viz.^ An Office that concerns the
administration and Execution of Justice Yet if we consider the
whole law it will appear it could never be intended of the Sheriffs
Office. The Penalty is that the Party selling shall forfeit all his
Right Interest and Estate in the Office and the Party buying be
disabled in Law to hold the Office and the Promises and Bonds
to be void
Now I would ask what Right Estate and Interest a Sherif
has in his Office Every One knows it is an Office of Burthen and
Charge Men are subject to Penalties if they refuse to execute it.
The Words Right Estate and Interest plainly shew the Act
B88 VIRGINIA COLONIAL DECISIONS
intended only Offices of Profit for no man can be sayed to have
an Estate and Interest in an Office of Burthen.
Then he is to forfeit the Office. It will be an easy Expedient
(tho' the Notion I believe is somewhat new) for a Sherif to get
rid of his Office if it is within this Act He has nothing to do
but to make a Bargain with an Undersherif for a sum of money
[82] and he is discharged. If this could be done Men would not
pay such great Fines as they do in London for not serving At
this Rate there would hardly ever be a Sherif Every One
would be shifting the Office off himself.
But there was no Occasion for this Act to extend to the
Sherif There was one made 100 years before 23 H. 6. 10. prohibit-
ing Sherifs to let their Counties to farm This is the Stat. Deft,
should have taken advantage of And it is a plain mistake in
his Lawyer No other Stat, was ever thought to extend to
Sherifs as to this matter
There is an ancienter Stat than this of H. 6. viz. 4. H. 4. C. 5. in wch. there is
no Penalty but there is in the 23. H. 6. viz. 40. £.
The 23 H. 6. is a private act of which the Judges can not take
notice unless it be pleaded 4 Co. 76. b. Hob. 13. 1 Vent. 85. 2
Lev. 151.
But the Question now is Whether the Plea be good which
clearly is not. The other Stat, is now out of the Questioh
It does not appear in the Condition that this tobacco was
given for Farming the Office And it might be for another Cause
The Demurrer only confesses it so far that it must not be denied
on the Argument of this Plea But it is not such a Confession
as is any Evidence of the Fact.
But if the 5. & 6. E. 6. does extend to Sherifs it has been
adjudged not to be in Force in the Plantations 4. Mod. 222.
Sal. 411. Blankard ag't Galdy.
Farming of Offices is not so unlawful as may be imagined
The Stat, only extends to Cases where a Sum in Gross is agreed
for If the agreement is to pay so much out of the Fees and
Profits and not at all events it is not within the Stat. 2 Sal. 466.
Culliford a De Cardonel 468. and 6 Mod. 234. Godolphin a
Tudor So if there be a Salary annexed and a lesser sum is
reserved it is not within the Stat. Ibid.
The Stat, intended only to prevent Extortion in Offices which
Men would be tempted to if they paid a large Sum for a Deputa-
tion at all Events But if they have a certain Profit or chance
BARRADALL'S REPORTS B89
for a Profit out of the Fees they are not to be xmder the same
Temptation.
I shall agree if this Bond is void as to paiment of Tob'o it is so
for the Whole. There is a Difference where part of a Condition
is void by the Common Law and where by Stat. In the first
Case it may be void in Part and [83] stand good for other [sic]
Part. But where Part of the condition is against the Stat, it
is wholly void. The Reason is because the Stat, says the Bond
shall be void and therefore it cannot be set up in Part Hob. 14.
Norton & Sims 3 Co. 82. b. 83. a. 1 Vent. 237. 1 Mod. 37 Carter
229. Pearson a Humes 2 Dan v. 21. 8.
Stat, compared to a tyrant Common Law to a nurse 1 Mod. 37.
1 Bac. Abri. 541.
I hope it will be considered how hard a Case it will be upon
the Pit. if Plea adjudged good The Whole Bond will be void
and he without any Remedy against his Undersherif tho' guilty
of ever so many Breaches It will be his utter Ruin and Destruc-
tion This Suit is chiefly brought to recover Quitrents for which
Pit. himself is Sued.
No Honesty in the Plea Practice usual and under some
circumstances justifiable
Judgment for the Pit. that plea was not good per tot, cur.
B. In Brownlow Latine Red. 216.218. This Stat. is pleaded
to a Bond for Paiment of money with a Averment that the Pit.
sold the Deft, the Office of Undersherif For which money he
gave the Bond There was an idle Rep*t and a Demurrer But
the author observes that the Reason of such a Replication was
because the Date of the Stat, was mistaken for otherwise the
Plea was good Sed QucBve et Nota the Case of Blankard and
Galdy was a Deputation of the Office of Provost Marshall of
Jamaica (which is the same office as Sherif with us) and no
Exception taken that it was not an Office within the Act.
Vi. Mo. 781. Stockwith & North fined in Star Chamber for that being Sherif of
not he farmed his bailiwick ag't the 4. H. 4 No Notice taken y't it was ag't 5. &
6. £. 6.
In the argument of this Case it was sayed that 23 H. C. had
no Penalty and therefore 5. & 6. E. 6. was necessary to be ex-
tended to the Office of Sherifs But that is a mistake There
is a penalty of 40;^ by the 23. H. 6.
[84 page blank].
B90 VIRGINIA COLONIAL DECISIONS
The King ag't Oldner & Brilehan [85]
The Prisoners were Indicted for Feloniously taking certain
Goods the property of Persons unknown.
Upon the Evidence the Case appeared to be that a Ship was
Stranded in Chesapeak Bay near the Shore which is in Princess
Ann County The Prisoners went on board and took the Goods
mentioned in the Indictm't which it was supposed belonged to
some Persons that were lost
For the Prisoners it was insisted 1. That this Offence was
committed on the Sea and so triable in the Admiralty 2. That
these Goods were Wreck And Felony could not be committed
of them 3. No property was proved in the Goods To which
it was answered
1. The question is whether the place where this Ship was run
aground can be taken as part of the body of the Cotmty
(43)
This is a new question in this part of the World In England
I take it It would be clearly within the County
4. Inst. 240.
By several Statutes in England the Jurisdiction of the Ad-
miralty is restrained and is confined to the main Sea or Coasts
of the Sea not within the body of any County.
By 15. R. 2. 3. Admiral hath no Jurisdiction of any Contract
Plea or Quarrel done within the bodies of the Counties either by
Land or Water Except of the Death of a Man or Maihem in
great Ships hovering in the great Stream beneath the points of
the Rivers
By 27. Eliz. 11. (No such Act now in force or print) giving the
Admiralty cognizance of Offences Done on the main Sea or
Coasts of the Sea being no part of the body of any County
1 If it be within the County so that a Civil Action will lie
a fortiori it ought to be so for criminal matters It is for the
safety and benefit of the Subject
2. H. 4. restrains from Suing in Admiralty where Comon
Law has Cognizance & gives double Damages
In Anno. 6. H. 6. Action brought on this Statute for Suing in
Admiralty for Trespass taking 3 Ships lying in Bristol Haven
and Judgm*t for Pit.
Anno. 12. H. C. a like Action for Suing in Admiralty for
BARRADALL'S REPORTS B91
Trespass in entering Ships and carrying away Goods in the
Haven of Yarmouth in Norfolk
The Thames at BilHngsgate Infra corpus Com,
Replevin for taking a Ship in the Coast of Scarboroug good
No part of the Sea where you may see from one Land to the
other
It is safest for the Subject to restrain the Admirals Jurisdic-
tion for if [86] the Defts. are tried upon the 11. & 12. W. 3.
cannot have Clergy.
This neither upon the Main Sea nor upon the Coasts of it
And so must be within the body of some County. It is so near
the Shore that the County may easily have knowledge of the
Fact and in all such Cases in England the Water is taken to be
within the County
2. It is certain Felony cannot be committed of Goods
wreck'd till after Seizure The reason is because there must
be a property in some prson of Goods stolen to 6onstitute a
Felony tho it be not necessary to prove the true proprietor
Upon the same reason no Felony can be committed of Waifs
or Strays
It is clear then this must be understood of Goods so Wreck'd
that they become forfeited either to the King or some other by
virtue of the King's Grant
By the Common Law wherever a Ship was wreck'd or cast
away and the Goods cast ashore They became forfeited to the
King But this was thought extream hard and seemed to be
adding misery to the unfortunate and therefore to alleviate the
matter a Httle so long as E. 1. time By the Statute Westm.
1. cap. It is provided that if a Man Dog or Cat escape alive it
shall not be deemed a Wreck nor the Goods forfeited but they
are to be secured by the Coroner Sherif &c.
This last indulgence is enlarged by the 12. Ann. Cap. for even
after the year the Goods or produce are to be returned to the
Exchequer and delivered to the Owner upon Affidavit before a
Baron
So that Goods in such Case do not come under the Denomina-
tion of Wreck in Judgment of Law tho' they may be called so in
common conversation The property remains still in the Owners
and is not forfeited And therefore the reason upon which the
Law is founded that Felony cannot be committed of a Wreck
does not hold
B92 VIRGINIA COLONIAL DECISIONS*'
But here the Goods were not thrown ashore the People were
endeavouring to save them and the Prisoners did go abroad and
rob them
3. Indictment good Cujtisdam ignoti Hawk. 94. 29. Dalt.
cap. 156. Dy. 99. pi. 61. 1. Hales P. C. 512. So for Murder
cujusdam ignoti 2. Hales 181. The goods in such case belong
to the King The Law will sometimes feign a property rather
than sufiEer a Criminal to escape as for robbing a Chtirch in
Vacation Indictment may be Bond Capellae in the custody of
such a one So Bona Domtis & Ecclesia
But here the Master has a kind of special property which
answers 8. Mod. 146. for there it might be the Goods were the
Accused's but here it is otherwise
The Court gave Judgment upon the 2d point only viz. that the
Goods were Wreck and Felony could not be committed of them
And so the prisoners were acquitted
[87] In the Court of Oyer & Terminer following, one Cross
was Indicted for Horse steaUng And upon the Evidence it
appeared the Horse belonged to one Buckner in Gloucester and
had stray'd into Prince W'm where he was taken up by one Earl
and kept on his plantation 3 or 4 Months From whence the
Prisoner took him apparently with a Felonious intent having
offered to sell him Earl had pubUshed notices at the Churches as
the Act of Assembly directs
The Court started a doubt that this Horse being a Stray as
they termed it Felony could not be comitted by taking it To
which it was answered
A Stray is defined to be a Beast found wand'ring about the
fields whose Owner is unknown Pecus quod elapsum a custode
campos percvial [sic] ignoto Domino, Spelman in Verl. Terms
of the Law
By the Law of England Strays were originally in the Crown
tho they are now generally in the hands of Subjects by Grant
or Prescription as Lords of Manns &c. When a Stray is found
and seized by the Lord He is to^make Proch. at the 2 next Market
Towns 3 several days and if the Owner does not appear within
a year & day It is forfeited to the Lord By a Stray here we
mean much the same thing as in England By the 4. Ann. 13.
It seems as if any person may take up a Stray The taker up
is to set up notice at the Church and Court House And if the
Owner does not appear in a year the Stray is to be valued The
BARRADALL'S REPORTS B93
property is vested in the Taker up but he is answerable for the
value to the Owner
It is the Current of our Books that a man cannot commit
Felony of Wreck Treasure Trove Waif Stray or such Hke Which
however ought to be xmderstood under some restrictions
For I take it the rule only holds while the Beast is actually
wandering or at large And that after Seizure by the Lord
Felony may be committed of such a Beast as well as any other
Dalton and Hawkins in Speaking of this matter are both express
that Felony cannot be committed before Seizure Dalt. Just. 373.
1. Hawk. 94. Sr. E. Coke and Sr. M. Hale both intimate the
same If any find Treasure Trove Waif or Stray and convert
them it is no Larceny says Sr. E. Coke 3. Inst. 108. Sr. M. Hale
puts the Case of a Man's finding a purse in the Highway which
no circumstance can make Felony he says And then adds the
like in taking of a Wreck Treasure Trove a Waif or Stray L
Hale 506. Which passages I think plainly shew that these
authors mean a Taking before Seizure
Nay Sr. M. Hale adds that the Party taking them must really
believe them to be such at the time for otherwise says he Every
Felon would cover his Felony with that pretence Ibid,
[88] So if a Horse strays into a Neighbour's Ground or Com-
mon it will be Felony to take him Ibid.
Thus even before Seizure under some Circumstances Felony
may be comntiitted of a Beast that is a Stray
Then the inconvenience in this Country will be very great if
when a Horse gets out of his Owner's Inclosure and happens
to be taken up for a Stray He may be stolen with impunity
But the Court were of Opinion that it was no Felony And so
the Prisoner was acquitted.
There was I think only 6 Judges ag't 5
APRIL COURT MDCCXL.
Jones &c. v. Porters In Cane, Jeff. R. 62. S. C.
See 2 Hop. 101. the Argrum't at Law intended to be made before the act of 1734
to prove that the private exam, ought to be prestuned
Bill sets forth
That W'm Porter & Jane his wife in right of Jane were seized
in Fee of 99 A of Land & 400 a. in Mid'dx & agreed to sell the
99a. to Tho's Jones Pit. Johns father & 400 a. to Pit. Roger and
B94 VIRGINIA COLONIAL DECISIONS
accordingly by Deed dated 1703 between Porter & Ux'r & said
Tho's Jones conveied said 99 a. to Thos. Jones in cons, of 3960
lbs. Tob'o And by another Deed in 1704 betw. Porter & Ux'r
& Pit. Roger conveied the 400 a. to Pit. Roger in Cons, of ;£^160
Sterl. And in both Deeds Porter and his wife covenant for further
Assurance and they also gave a Bond to Pit. Roger for perform-
ance of Covenants
That Porter & Ux'r came to Court to acknowledge these
Deeds but by the mistake or ignorance of the Clk. the Entry
of the Acknowledgment is that the wife relinquished her right
of Dower And no Notice is taken of the privy Examination
That Porter died in 1705 & Jane his wife survived him & died
in 1709 leaving Issue Francis Porter her eldest Son and Thomas '
Jones died many years ago leaving Issue Pit. John his eldest
Son And Pits, continued in quiet possession till 1732 when
Francis Porter Son & heir of said Jane brought an Ejectment
for recovery under pretence his Mother was not privately ex-
amined And upon a [89] Special Verdict had Judgment to
recover and threatens to sue out Hab. fa. poss. tho* it is plain
upon the face of the Deeds Defts. Mother intended to convey &
she always acquiesced under it never pretended she was not
privately examined but on the contrary in her Widowhood
declared she had joined freely & voluntarily in the Sale & was
satisfied with it
Francis Porter died pending Ejectm't & Defts are his Heirs
at Law And the end of the Bill is to have the defect of the
private examination suppHed And the Defts. to make a perfect
& absolute conveiance the Pits, being purchasers for a valuable
cons.
The Defts. being Infants by their Guardian put in a Plea &
Answer They plead the Act of 1734 which Enacts that where
the Clk. has not taken notice of the private Examination it
shall be taken the feme was not examined.
And for Answer say they were Infants at the time of the
Transactions charged in the Bill & know nothing of them And
hope the Court will not compel them to part with their Inherit-
ance legally descended to them And pray to have the benefit
of the Judgm't at Law
The Proofs in the Cause are very short Only one Witness
W'm Hammett who says he was in Company with Jane Porter
in her Widowhood & asked her for what reason she agreed to
BARRADALL'S REPORTS B95
sell the Land to the Jones's She answered that she nor her
family could not have their healths upon nor make Com for
support of their family That tho' Mr. Jones thought he had a
good Bargain she wished it might prove so And was glad the
Land was sold
There need be little say*d to the Plea which seems quite
unnecessary We don't pray this Court should decree that the
Woman was privately examined but to have the defect or want
of that Circxmistance supplied I shall never pretend to say
that a Court of Equity can controul an Act of Parliam't or Act
of Assembly however severe it may be upon particular Persons
And we cannot help thinking this Act somewhat severe upon
us being made while the Suit at Law was depending
We allow then that the Woman was not privately examined
the Law has declared so & we must submit The question prop-
erly before your Hon'rs & the only quest, is whether a Court of
Eqtiity will supply a defect of this kind when it appears as I
think it must be allowed to do in this Case that she had agreed
to part with her Inheritance & was consenting & willing without
the Coersion of her [90] husband.
This consent & agreement appears from the wifes executing
the Deeds the Grant & all the Covenants are in her name as
well as the Husbands. She enters into the Bond for performance
of Covenants And she comes to Court in order to acknowledge
She acqtiiesces under the Deed And declares in Widowhood
that she had agreed & was glad the Land was Sold These
Circumstances and Proof must be convincing that the Woman
was actually consenting and willing to part with her Inheritance
Then I say whether the want of a private examination may
be supplied by a Court of Equity. Or whether the Heirs of the
Woman shall not be compelled to make a good & legal Conveiance
is the Question before the Court And I hope I shall have no great
difficulty to perswade your Hon'rs that we ought to have such
a Decree & that the same is consistent with the constant course
of Equity in cases of the like nature
This method of the private Examination of femes covert is
peculiar to the Laws of England renown'd for its great favour
& regard to Woman It was Introduced to preserve & protect
the Inheritance of the wife from the arbitrary Will & Disposal
of the husband that she might not be compelled by his threats
or cruelty to part with it against her Will It is nothing more
B96 VIRGINIA COLONIAL DECISIONS
then than a particular mode or ceremony instituted for a particu-
lar purpose And I humbly conceive that if the end for which this
Ceremony was introduced can appear to have been answered
that is if it appear that the wife was not compelled against her
Will. It is the same thing in natural Equity & Justice as if the
ceremony had been ever so formally complied with
The Law has appropriated particular forms and ceremonies
almost to every kind of Conveiance Livery is essential to a
Feoffment & a Surrender to pass a Copyhold And the Courts
of Common Law that are tied up to strict & rigid rules will
never dispence with the want of these Ceremonies But it is the
pecuHar province of Equity to supply these defects Especially
in fav'r of a Purchaser for a valuable cons, as we are It is
even a kind of Maxim that Equity regards the Substance & not
the Circumstance of every Act
To examine this Case by that Maxim Does it not appear here
that the Woman was willing & intended to part with her Inherit-
ance And is not that the Substance of the Act The defect is only
in a Circumstance the want of private Examination
[91] The Cases in the Books are numerous where Equity has
supplied the want of Livery in a Feoffment & want of a Sur-
render in passing a Copyhold in fav'r of Purchasors & sometimes
even in fav'r of younger Children. I will beg leave to read two
short ones for the Courts Satisfaction Thompson v. Atfield 2 Ch.
Rep. 216. Hardham v. Roberts 1. Vern. 132.
These Cases may suffice to shew the constant Course of Equity
to be as I have say'd viz. to supply defects in Conveyances
in fav'r of Purchasors
Now if Equity will supply the want of Livery in a Feoffment &
the want of a Surrender in passing a Copyhold Which Ceremonies
must be allowed to be as essential in point of Law to the respective
Conveiances as the Examination of the wife can be where her
Inheritance is to pass I shall beg to know what good reason
can be given why a Court of Equity should not interpose &
assist an honest Purchasor in the one Case as in the other when
it is manifest it was the voluntary Intent of the Wife to pass
her Estate
If the motive & reason of the Determination be considered
it will appear they have as great weight in the present Case as
those cited. The true reason as I conceive is because when there
appears a fair contract between two parties & one has paid his
BARRADALL'S REPORTS B97
Money for the Land the Vendor is become a kind of Trustee
in Equity for the Vendee & so compellable in Equity to make
or perfect a Conveiance as the Case may require that the Vendee
may have the legal as well as equitable title in him
Now I will beg leave to suppose that Porter & his wife were
now alive And this Suit was brought ag*st them instead of the
heirs of the wife Upon the Proof there is in this Case that the
Wife was consenting & that the Purchase Money was paid I
presume there would be no manner of question but that we
should have a Decree we now seek for ag'st them to perfect the
Conveiance or that we should enjoy ag*st them & their heirs
Nay tho' the Woman should deny her consent if it was made
evident by Proof And the Purchasor in Confidence of it had paid
the Money Equity would without doubt consider such a Pro-
ceeding as a fraud & relieve ag*st it
Now I would fain know what greater Equity the heir can
have than the Ancestor The title they derive is under this
ancestor And the same Equity that would run ag'st the An-
cestor must run ag'st the Heir If then it be allowed that we
could be relieved ag'st the Ancestor as I think cannot fairly be
denied I do humbly insist that we are intitled to the same relief
ag'st the now Defts. her Heirs
[92] Obj. No instance of Equity relieving in such a Case in
England.
Answ'r That is not strange because it is a Case that never
could happen in England I mean there never could be such a
question.
The only way for a feme covert to pass her Inheritance in
England is by fine or recovery And tho' she ought to be privately
examined Yet if a fine is levied by the Husband & Wife & the
Wife is not examined it shall bind her and her heirs Cokes
Reading Sect. 7. So that when the fine is once levied the Pur-
chasor is secure & has no occasion to apply to a Court of Equity
tho' the feme in fact was not examined
Hence it is plain this is a question that never could be made
in England And therefore it is no wonder we meet with no Cases
in point But I think there are Cases where a Court of Equity
has done as much or more & in instances that must be allowed
to be as strong as this because the Ceremony of private Examina-
tion must have been dispenced with.
Baker & Child 2 Vern. 61. It seems to be mentioned by the
B98 VIRGINIA COLONIAL DECISIONS
Court as an established rule that where a feme covert agrees
to join with her Husband in making a Surrender or levying a
fine tho' the Husband die before it be done Equity will compel
her to perform the Agreem't
(?) Q. if this be not meant of an Agrem*t before Marr.
If where there is only a bare Agreem't of the Wife Equity
will compel her to perform it. I must submit if there be not a
much stronger reason in this Case where an Agreem't does not
only appear but the Wife atually executes a Conveiance which
happens to be defective only in a Circumstance
I rely upon our being an honest Purchsor for a valuable cons.
Purchasors are ever favoured in Equity And the Court will often
stretch in their fav'r Indeed nothing can be more consonant to
natural Justice than this that where a Man has paid his Money
he should have all the Assistance of the Law to protect & secure
him in the Pos'sion of the thing purchased
If this Case be considered only under the notion of an Agreem't
(and surely the Agreem't of the Wife in this Case cannot be
controverted) I humbly conceive this Court ought to interpose
upon the Authority of the Case just cited. It is indeed the
peculiar Province of Equity to compel the specific Performance
of Agreem'ts Even where the Party may have remedy to recover
Damages at Law And in this Case we can have no effectual
remedy at Law the Husband is dead Insolvent And we must
intirely lose our Purchase Money & Improvem'ts unless this
Court will assist us
Fraud Accident & Trust are say'd to be the three principa
[93] things about which a Court of Equity is conversant
In this Case there is a fraud on the Defts part that they would
take Advantage of the defect in their Ancestor^ Conveiance
There is Accident in two instances viz. the Mis Entry of the
Clk. & the death of the Woman
And there is Trust by the paiment of Money & the wife's
Agreement
This is undoubtedly a Case of great Compassion Here is an
honest Purchasor before the Court And the only objection to his
title is a defect in the Conveiance & that only in point of Cir-
cumstance or Ceremony This Defect not attempted to be taken
advantage of by the Grantor but the Heir after a quiet possession
of 30 Years contests the Act of the Ancestor always acquiesced
BARRADALL'S REPORTS B99
tinder by her A Purchaser without any remedy unless assisted
by this Court The reHef sought ag'st no rule of Equity Attended
with no inconvenience Ag'st no Act of Parliament Equitable &
reasonable in itself & agreeable to the Course of Equity in similar
Cases And if it be so If the thing desired be no more than natural
Justice will If it neither interfere with nor violates any one
estabUshed rule of Equity There can want neither Argum't nor
precedent to induce a Court of Equity to Decree for us
Francis Fr Deft.
The end of this Bill is to repeal an Act of Assembly Equity
cannot Decree ag'st an Act of Pari. There is no Instance where
a Stat, requires a particular Act for transferring an Inheritance
that a Court of Equity will dispence with that Act If Ten't in
tail agrees to levy a fine: & dies before it is done Equity will
not compel the issue in tail to convey Nothing but the actaul
levying the fine can take the Inheritance from the issue , If a
Bargain & Sale be made without InroUm't Equity will not
supply it Nor any Circumstance that is required by the Stat, of
Frauds as to Wills It is not the Province of Equity to relieve
ag'st Blunders And to decree in this Case for the Pit. will be
to annul a Law made for securing Women's Inheritances The
rule of the Civil Law is where Equity would annul a Law the Law
must prevail
2. Vide the case of Blades vs. Blades Al. Ca. Eq. 358.
To which it was answered
What is desired by the Bill will neither annul the Act of
Assembly or be contrary to it The End of the Bill is not to
establish the Woman's Conveiance which is allowed to be defect-
ive but to compel a better Conveiance to a Purchaser for a
valuable cons. This sufficiently obviates all that has beensay'd
about decreeing ag'st [94] an Act of Pari. As to the Cases put
they are by no means parrallell The issue in tail shall not be
compelled to convey where the fine is not perfected because he
does not come in under the Ten't in tail but by force of the
Gift in tail The Ten't in tail in his life time would be compelled
to levy a fine if he so agreed And so here the Woman would be
compelled to make a better Conveiance if she was alive to the
same Equity must run ag'st her heir As to the Case of Inrollm't
tho' Equity would not decree the Deed good if not Inrolled Yet
it would decree a better Conveiance to a Purchasor which is
BlOO VIRGINIA COLONIAL DECISIONS
all we ask And as to the Stat, of Frauds the same Answer may
be given as to the Case of Ten't in tail We do not attempt to set
this Conveiance up as good but desire a better because it is not
good. Besides surely there is a difference between a Purchaser &
a Devsee And tho' it is say*d it is not the Province of Equity
to relieve ag'st Blunders Yet wee see nothing is more common
than for Equity to relieve ag'st Mistakes & defects in Conveiances
& especially in f av*r of honest Purchasers.
In this Case the Bill was dismissed by the Opinion of a great
Majority of the Cotirt.
Deeds acknowledged to be inroUed but not inrolled, yet good
Hutt. 1. 1 and. 229. Dyer. 355. a. In Cases of fraud, Equity
should relieve even ag'st the Words of A Statute 1 W*ms 620.
Parol Evidence admitted to shew that a feme covert Surrend'red
her Whole Estate tho' it was mentioned on the Roll but of a
Moiety 2 Vern. 547.
Tucker &c. vs, Tucker's Exors. In Cane.
The question was upon these Words in the Testator Tucker's
Will ** I give all my ready money and outstanding debts to be
** equally divided between Robert Tuckor, John Tucker, John
** Cooke, Robert Cooke & Mr. Jacob Walker's Children And in
** Case any of Mr. Walker's Children die before they come of
** Age that their parts go to the Survivor of them
'* Children."
Whether Walkers Children who are four in number shall
have each of them an equal Share with the Cooks & Tuckers
or only one Share among them
Barradall Fr the Pit. I apprehend it to be pretty clear from
the Words of this Clause that the Tes'tor intended Mr. Walker's
Children should stand in the place of one person from the manner
of his expression for why should not he have named them par-
ticularly as he does the Cookes & Tuckers if he designed each
of them the same Share
But when the whole scope of the Will is considered The An-
swer [95] of Boush one of the Defts. who wrote the Will & other
Circumstances attending this Case I hope the Tes'tors Intention
will appear very clear to give no more than a fifth part to them
It will be agreed I presume that in Devises concerning Chattels
or personal Estate parol proof & collateral Circumstances may
BARRADALUS REPORTS BlOl
be admitted to explain a Tes'tors intention that appears doubt-
ful from the words of the Will
The Cases to this Purpose are numerous 2. Vem. 99. Pring &
Pring . . . 252. Countess of Gainsborough ag'st E. of G. . 506.
Oldham ag't Lichford 517. Pendleton ag't Grant.. 593. Cuth-
bert ag*t Peacock. 648 Lady Granvil & al vs D — ss of Beaufort.
673. Wingfield ag't Atkinson. 675. Ball ag*t Smith & Littlebury
& Buckley there cited. Mod. Ca. L. & Eg. g. Rachfield &
Careless. Doyrell &Molesworth Ch. Ca. Abr. 231. 3.
These Cases proove that parol Proof & collateral Circumstances
are admitted not only to explain but sometimes to controul*
the meaning of words in a Will.
a. Parol evid. never admitted to contradict express words Talb. 242.
Now the Proof & Circumstances in this Case are 1. that the
Writer of the Will Boush one of the Defts. apprehended the
Tes'tors meaning to be to give only ^ to Walker's Children &
he gives such reasons for it as I think must convince everybody
else viz. that the Mother of these Children who was dead at the
time was but in equal degree with the other Legatees She was
the Sister of the Pits. And because if they were to have half
they would have more than ^ of the whole Estate And because
Tes'tor did not think of making Mr. Walker his Ex'or till put
in mind
I must dwell a little upon each of these reasons
1. That the Mother was but in equal degree with us. It is a
natural & reasonable Presumption that a Man has the greatest
Affection & regard for his nearest Relations Upon this ground
it is that an heir shall not be disinherited without express &
plain words which is a known rule of Law And upon the same
ground I conceive it is just to suppose In the disposition of Per-
sonal Estate a man would have an equal regard to his Relations'
in the same degree unless there appeared to have been some
cause of disgust where his intention is very plain. In this Case
the Legatees the Cookes & Tuckers were the Tes'tor*s Nephews
Mr. Walker's Children his Niece's Children & their Mother dead
From this Circumstance no man would conclude the Tes'tor
had a greater regard for his niece's Children than his Nephews
who are nearer in Relation [96] Especially as in this Case there
was so far from being any quarrel or dislike towards the Nephews
that from the whole scope of the Will it will appear he had it
B102 VIRGINIA COLONIAL DECISIONS
principally in his intention to prefer them & one of them the
Pit. actually lived with him And I think I may venture to say
the words are far from plain to give each of Walker's Children
an equal Share but rather the contrary
2. Reason assigned by Boush is that if Walkers Children have
half the ready Money &c. they will have more than an equal
Share of the whole Estate Whether it is reasonable to suppose
from the Scope of this Will that the Tes'tor could intend to
advance these Children so much more than his Nephews I must
beg leave to observe a little upon the Will The Tes'tor never
once takes notice of Walkers Children Except in the Devise now
before ixs Whereas he speaks of his Nephews in several places
gives them several Legacies & makes them Residuary Legatees
Which I think is a plain Proof that he had it more in his intention
to advance them than Walker's Children whom he only once
names
3. Reason is that he never thought of making Walker Ex'or
till put in mind which is a further Argument that he had not his
Children so much in view or the advancement of them as of his
Nephews Some of whom are of his Name
If it be objected that what Mr. Boush Swears is only his
Opinion I answer it is something more he was the Writer of the
Will And one who takes Words from the Mouth of another to
commit to writing may from the way & manner of the party's
expressing himself be a better judge of what he means & intends
than any person can possibly be who reads the words afterw'ds
And Boush says when he wrote the Will he did believe the Tes'tor
intended no more than |th for Walkers Children So that this
is certainly something more than a bare Opinion & I dare say
will be considered as a strong circumstance at least to prove
the Tes'tor's intention That the Writer of the Will at the time
he wrote it apprehended the Tes'tors intention to be so
Thus we have not only the Evidence of the Writer of the Will
but the other strong circumstances viz. The intention of the
Tes'tor from the whole Scope of the Will The true rule for con-
struing all Wills The inequality this will occasion contrary to
the presumed rules of Affection
And on the other hand I dont know one Circumstance that
can be offered on the other side to fav'r the construction they
contend for There could be no inducement from the Circum-
BARRADALL'S REPORTS B103
stances of the Children's father to provide so largely for them
Mr. Walker is very well able to provide for his own Children
The Children's Mother was dead & we [97] may rather suppose
his Affection was lessened from that Circumstance There is
no proof of extraordinary Affection to these Children And the
truth is he conversed but little with Mr. Walker whereas the
Pit. lived with him So that I apprehend they have nothing
to rely upon but the Words And I conceive the words may
very well receive the Construction I contend for. The Word
Equally may very well import Equal according to the Relation
of the sev'l Legatees Especially as he has not mentioned the
Children's names but seems by the manner of the Expression to
consider them as one P — son as the Representatives of their
Mother
But if there is any doubt upon the words themselves The
Testimony of the Writer The Scope of the Will & the other Cir-
cumstances which have been observed sufficiently & I conceive
incontestably shew the Tes'tor's meaning.
P. the Deft. It was insisted that the word Equally could
not be satisfied unless the Children had each of them a Share
That it was the genuin construction & the Tes'tor could not
have expressed himself in any other manner to give it them
That there was no difference between naming the Children &
not That there were no Cases where parol proof or Circum-
stances were admitted to influence Construction of a Will but
to make certain a person or thing Cole & Rawlinson 1. Salk. 325.
Cary & Bertie 2. Vem. 337. Rachfield & Careless Mo. Ca. L. &
Eg. g. were cited
That there were Circumstances in their fav'r Tes'tor might
intend a provision for his Nieces Children In case Walker
married again The Tuckers had good fortunes from their father
Uncertain what Walker might do for his Children
There were also cited these Cases Weld & Bradbury 2. Vem.
705 Devise to the Children of I. S. & T. N. who had neither
of them any living at time of Devise or Tes'tor's death Adjudged
Children bom afterwards should take & that per Capita not per
Stirpes.
Walsh & Walsh Ch. Ca. Abr. 249. A had three Brothers all died
before him leaving several Children Adj'd Children should take
per Capita not per Stirpes Because do not take by way of Repre-
sentation but all as next of kin
B104 VIRGINIA COLONIAL DECISIONS
And a Case out of Swinbum where a Father & his Children
were made Ex'ors & Residuary Legatees And held that each
of the Children should have a Share
Et Vide Pres. chan: Warner v. Hone & Talbot, 251, Thomas v. Hole.
To which it was Answered
Admitting the word Equally ex vi termini imports that each
shall have the same Part Yet here we are in the Case of a Will
where the Intention is to govern without regard to the precise &
strict Signification of the words And the q'n here is Whether
the Tes'tor did not consider [98] Mr. Walkers Children collec-
tively as representing their Mother In that view the word
Equally may very well be satisfied by giving them a a 5th The
Matter depends upon the meaning & intention of the Tes'tor
See Skinner 182.
The Children not being particularly named is certainly an
Argum't that the Testor considered them collectively tho* if
they had been named it would have made but little in fav'r of
their Argum't
It is strange it sh'd be say'd there are no Cases where parol
proof is admitted but to make certain a person or thing After
so many have been mentioned which prove the contrary viz.
that it is admitted to explain a Tes'tor's meaning But admit-
ting it to be so we are within the Distinction we are here en-
deavouring to ascertain the person in some sort Cole & Rawlin-
son & Cary & Bertie are upon a Devise of Lands where I agree
parol proof is not admitted The reason of which is the Statute
And in Rachfield & Careless it is only say'd no Evidence shall
be admitted where the Will explains itself which admits that
Evidence may be where the Will wants explanation And tho*
such proof is not allowed to a Jury It is always allowed to the
Court in Equity Ch. Ca. Abr. 230. in Notts.
The Circumstances relied on in their fav'r are forced & meerly
conjectural & no great complim't to Mr. Walker as to Tuckers
having good Fortunes That is not the Case of the Cookes but
probably he intended to keep up his Name & family
Weld & Bradbury was cited I suppose because there happens
to be the words Stirpes & Capita in it for it is nothing like this
Case
The p'son to whose Children the Devise was had none living
at the time of the Devise and therefore it was held an Executory
BARRADALL'S REPORTS B105
Devise to such Children as they should afterwards have And
the Children to take per Capita, There was nothing in the Case
to shew he intended otherwise & without doubt in a general
Devise to a Mans Children they shall take equally which is all the
Case cited out of Swinbum prooves
Walsh V, Walsh is still less to the purpose The Quest, there
was upon the Stat, of Dist. A man had three Brothers who
all died before him & all left Children And it was held the Chil-
dren sh'd take per Capita being all in equal degree of Relation
There they did not take by Representation all their fathers being
dead but if one had been living it had been otherwise
In the Case of Godwin v, Kinchens Ex'ors heard in this
Court in April 1738 the Devise was thus ** All the rest of my
Estate I give to my Brother W*m Kinchen & my three sisters
Eliza. Martha & Patience & James Godwin's 3 Children James
Martha & Matthew. And it was held and so Decreed that
Godwin's Children took collectively and had but a 5th.
Vide. 2. Will. 383. Blackler v. Webb seems contrary to this Case.
[99] And so in this Case after two Argum'ts it was decreed
for the Pits, that Walker's Children took collectively & were
intitled only to \ among them
But note this Decree was reversed upon an Appeal And
chiefly as I have been informed by reason of the Word (Parts)
in the Lim over to the Surv'r of Walker's Children
BuRWELL &c. vs. Ogilby &c. Ifi Cafic.
One Ogilby by his Will devised as follows ** As to what relates
'* to my temporal Estate I appoint as my whole & sole Ex'or
** my^ beloved Wife Item I desire all my lawful Debts be paid
** after my funeral Charges Item I leave all Estate at the dis-
** cretion of my Ex'x to be equally divided among my Children
** bom in Virg'a And that my Wife shall possess the House &
** Lots during Widowhood but if she marries the House & Lots
"to be sold & equally divided among all my said Children"
There being a deficiency of p'sonal Assets to pay the Tes'tors
debts The Cred'rs by simple Contract brought this Bill ag'st
the Ex'trix & Children to subject the House & Lots devised
above to the paiment of their debts
Barradall fr Pits. The Lands & Tenem'ts of a person dece'd
are not subject by the Common Law to the paiment of debts by
B106 VIRGINIA COLONIAL DECISIONS
simple contract tho' they are to debts by specialty But as
there is no foundation in natural Justice for this distinction
And the Civil Law makes no difference between debts of the
one sort & the other Nor even a Court of Equity in Cases of
Bankrupcy & Meer Equity as Trusts &c. Therefore Equity is
always ready to assist simple contract Cred'rs to subject the
Lands to a satisfaction of their debts where the p'sonal Assets
are deficient
If an Ex'or pays debts by Specialty out of the p'sonal Assets
Equity will relieve the simple contract cred*rs & charge the
Lands to the value of the Debts by Specialty paid by the Ex'or
And so in Case of a Will the most liberal construction will be
made to subject the Lands And this seems founded both in
Charity & Justice for we ought charitably to suppose every Man
intends to pay his Debts & tis certainly just & right that they
should be paid
The words of the Will are ** As to what relates to my tem-
poral Estate I appoint my wife Ex'or Item I desire all my
Debts may be paid after my funeral charges'*
[100] The words temporal Estate include real & p'sonal
Then immediately speaking of his debts is a plain indication
he intended they should be paid out of his whole Estate He
designed to provide for them in the first place.
Talb. 284. Tanner & Morse.
Then the Will goes on ** I leave all my Estate to the discre-
** tion of my Ex'trix to be equally divided among my Children &
** that my wife shall possess the House & Lots during her
** Widowhood but if she marries to be sold &c."
This Clause shews he intended his wife & Ex'trix should dis-
pose of his Whole Estate & having provided for the paiment of
his debts first it must be intended out of the Estate given to his
Extrix
The very making a proviso for paim't of his debts imports an
intent to subject his real Estate because p'sonal would be
subject without
Cases of this sort frequent
Cloudsly & Pelham 1. Vern. 411. Devise of Lands to B. in
tail Then reciting that he owed B. money devised to him all
his p'sonal Estate willing him to pay his Debts Tho' the Clause
as to paiment of Debts seemed only to relate to p'sonal Estate &
BARRADALL'S REPORTS B107
ids were intailed Yet held that Lands were liable Alcock
:hawk 2. Vem. 228. A devises his Land to his Brother &
makes him Ex*or & desires him to see his Will performed
. held liable to debts
ichcroft & Beachcroft 2. Vem. 690. I do by this my Will
se of such Worldly Estate &c. first I will that all my Debts
id
>tt & Vernon Abr. E. 198. 6. I will & devise that all my
; Legacies & funerals be paid & discharged in the first place
c. Ch. 430. S. C. Hallon & NichoU Talb. JIO. s. p.
-rord Warrington & Lee Rep. Ch. & K. B. 39. As to all my
jrldly Estate &c. I give & dispose in manner following
Imprimis I will that all my Debts be discharged & paid
Harris & Ingleden cited in Case ult And as touching such
Voridly Estate & my Debts being first yaid & satisfied I will &
ievise &c.
Bowdler & Smith Prec. Chanc. 264. In point
In all which Cases it was decreed that the Lands were liable
to the paiment of the Testor*s debts
The number of these Cases shew the concurr'd Opinion of
many great men
The 2. first Cases turn upon all the Estate being devised to
the Ex'or And then there is an implied Trust
[ 101] The latter 3 turn all upon this expression in the begin-
ning ** as to all my Woridly Estate " providing for his debts in
the first place
We have the reasons of all these Cases 1. Tes'tor has given
all to his Wife & Ex'trix, 2 he begins As to my temporal Estate
3. he provides for his debts in the first place.
In this Case it was decreed fr tot cur prcBter Randolph & Custis
that the House & Lots should be sold to satisfie the Pits. Debts.
And that the Sherif of the County should sell to the highest
bidder & the Ex'trix & Heir make a Conveiance to the Purchasor
Anonimus.
Vide.
A man marries a woman intitled to a distributive part of her
Father's Estate & dies before distribution. Q. Whether this
distributive part survives to the wife or shall go to the Adm'r
of the husband
B108 VIRGINIA COLONIAL DECISIONS
The general rule of Law is that Things in Action do not vest
in the husband by the marriage unless reduced to a possession
during the coverture but survive to the Wife 1. Inst. 35 L 6.
They must either be reduced to an actual posscon or there must be some act to
attach the Intt. in the husband.
I cannot easily apprehend how the distributive part can be
distinguished from any other debt duty or interest of the wife's
It seems to be as much a thing in action as a Debt due by Bond
or otherwise or a Legacy which [sic] must be admitted do not
vest in the husband meerly by the marriage unless there be a
Judgm't during the coverture or some other act to alter the
property as a promise to the husband an assent to the legacy
or the like
But even in the Case of a Judgm't at Law for the Debt or a
Decree in Equity for the Legacy if the husband dies before
Execution the benefit of the Judgm't or Decree survives to the
wife & she shall have Execution & not the Executor of the
husband 1. Ch. Ca. 27. Nanny & Martin 1. Ch. R. 233. S. C.
for by the Judgm't the Debts attached in them jointly Carth.
415. Skin. 632. So that if the husband survives he shall have
it If the Wife she shall have the benefit
In this Case then if there had been a recovery of the dis-
tributive part by Decree & the husband had died before the
Decree was satisfied The Wife would have had the benefit
How much more so when there is no recovery or any Act to
attach this Interest in the husband.
[102] Obj. Cary & Taylor 2. Vem. 302. A. Married B. the
Daughter of J. S. who dies Intestate B. dies before distribu-
tion A. also dies before distribution or Adm'con taken to his
wife The Q. was whether the Adm'r of the husband or the
Adm'r of the wife was intitled to B.'s distributive part of her
father's Estate It was agreed in this Case that the distributive
part was an Interest vested but the doubt was whether it was
so vested as a legacy assented to that it should vest in the
husband without taking Adm'con to his wife And it was argued
for the husband's Adm'r (the Pit.) that since the Stat, for
settling Intestates Estates the Adm'r is but in the nature of a
Trustee & the taking Adm'con as the acceptance of a Trust &
implies an Assent that the Estate should be distributed accord-
ing to the Stat. & therefore the distributive Shares ought to be
considered not only as a legacy but as a legacy assented to &
BARRADALL'S REPORTS B109
consequently go to the husbands Adm'r This was the. Coun-
cil's Argum't but what the Decree was whether in fav'r of the
husband's Adm'r or wife's does not appear by the Book But
the Reporter adds at the End Tamen vide the decree By which
manner of expression I sh'd judge the decree was rather ag'st
the Argum't than in fav'r of it. However it must be allowed
that it rem's uncertain how the determination was & therefore
it can be no further an Authority than the reason of the Argu-
m't may prevail
And I must own it does not appear to me to have any great
force in it Thus far I agree that the distributive part ought
to be considered as a legacy & consequently as an Int. imme-
diately vested but why it should be considered as a Legacy
assented to any more than every Legacy given by a Will I
cannot comprehend for as to the Adm'r being in the nature of a
Trustee I take an Ex'or to be so too and there is not only an
implied Assent to perform the Will but he takes an Oath to do
so too And therefore to me the Argum't is as strong for a
legacy vesting in the husband as this distributive part Yet it
seems admitted that it wolud not vest without the Ex'ors assent.
I don't find that the point has been determined in any Case
either before or since And there being no resolution in that
Case it is no Authority nor indeed does it weigh with me at all
for the reasons I have mentioned
Besides that Case diflFers from the present in this material
circumstance that the right or interest accrued during the
coverture & so the assent if it was to be implied must be intended
to the husband But here the right or interest accrued to the
wife before marriage And therefore this implied assent that is
talked of must be to the wife & the right or interest could never
attach in the [103] husband upon any such implied assent nor
without some subsequent act nothing of which appears in this
Case And so upon the matter this Case if it is an Authority is
rather ag'st the Pit. than for him
Then in that Case too the wife died first & the husband sur-
vived Here the wife is Survivor which makes a material differ-
ence as I shall mention presently
Another Case that has been mentioned is Fouke & Lewen 1.
Vem. 88. A man married a Citizens Dauter She died before
21. & before her husband had rece'd her Orphanage part He
brings a Bill for it It was insisted that by the Custom of Lon-
BllO VIRGINIA COLONIAL DECISIONS
don the Share survived to the other Children But the Court
say'd that tho* there might be such a Custom where an Orphan
died before 21. unmarried Yet it could not take place where the
Orphan married & the Int. of her Share vested in the Husband
Vid. Prec. Chan. 537.
All that this Case proves is that an Orphans Share who mar-
ries & dies before 21. does not survive to the other Children.
There is indeed mention made of her Share vesting in the hus-
band but whether it vested in such a manner as to go to him
without taking an Admcon to his wife is not say'd And I am
of Opinion that it did not vest in him absolutely but that if the
wife had survived she would have been intitled to it & not her
husband's Adm'r according to Pheasants Case 1. Ch. Ca, 181.
2 Vern. 340. which as to this point was thus A man married
an Orphan whose fortune was in the Court of Orphans he rece'd
ab't £40 & no more & died having devised the residue The
Q. was whether he could devise it or in other words whether it
survived to the Wife And it was held that this Money was a
Chose in action that it did not vest in the husband & therefore
he could not devise it but it survived to the wife
Prec. Chaxic. 209. s. p.
This is a resolution in point almost; At least I can discover
no essential difference between this Case & that now before us
The Q. made was whether the Money in the Chamber of London
was to be considered as a debitum or a depositutn If the latter
it seems admitted that it would vest But it was held to be a
Debitum because Trover would not lie for it as it would for a
Depositutn And it was not recoverable without an Action.
So I say the distributive part in the Case before us is Debitum
& not Depositum Trover will not lie for it Nor can it be
recovered but by Suit in Equity
This Case agrees best with ours in Circumstance Here the
wife survived In the other two Cases the husband was the
Surv'r And in the latter Case he might have taken an Admcon
to his wife for anything that appears The point of Survivor-
ship may make a great difference There are many things
husband & Wife have a joint [104] Interest in & which go to
the Surv'r as a Decree or Judgm't for Money due in right of the
wife
Upon the whole conclude that it must be a great absurdity
BARRADALUS REPORTS Bill
in the Law to give this Int. to the husband without any
Judgm't or Decree during the Coverture when if there had
been such Judgm't or Decree & the husband had died before
Ex' con the benefit would have survived to the wife
I therefore look upon this distributive Share as a Thing in
action that did not vest meerly by the marriage There was
no act during the Coverture to attach the Interest in the hus-
band And so it must survive (*) to the wife & not be subject
to the husband's debts
(a) See Ld. Chancellor's Opin. Talb. 170.
Daeth & Baux 1. Mod. Ca. L. & Eq. 63. Motion for a prohi-
bition to the Spiritual Court for suffering a feme Covert to sue
singly upon the Stat, of Distributions Because it was properly
so vested in the husband that it might be released by him But
denied fr. Cur. for this was a Chose in action & so much the
wifes that she shall have it by Survivorship
This was a Case in James City upon a Special Verdict And
the Court gave Judgm't for the husband's Adm'r that the wife's
distributive part vested in the husband, Much against my
Opinion
OCTOBER COURT MDCCXL.
Brock vs. Lyne
Susanna Orrill seised in fee makes a Deed of Gift to her Son
& Heir Orrill in tail. She dies leaving issue this Son & a Daugh-
ter by her first husband & a Son by a second husband Orrill
the Donee dies without issue The Lessor of the Pit. is his
Sister & Heir & the Deft, is the Donor's Son by her second
husband & is her Heir The Q. is whether the Reversion which
was expectant upon the determination of the Estate tail created
by the Deed from S. Orrill to her Son Orrill upon the death of
Orrill the Son descends to the heir of Orrill the Son who is the
Pit. or to the Heir of the Donor S. Orrill who is the Deft. Barra-
dall fr. Deft. It must be agreed on all hands that after the
Deed from S. Orrill to her Son whereby she gives him only an
Estate tail there was remaining in her a Reversion expectant
[105] upon the determination of that Estate tail
The Rev'n upon her death descended to her Son Orrill the
B112 VIRGINIA COLONIAL DECISIONS
Ten't in tail And that after her death he was Ten't in tail with
the Rev'n in fee expectant all which I agree
Upon the death of Orrill the Son without issue whereby the
Estate tail determined this Rev'n expectant they say descended
to the Sister & heir of Orrill the Son. But I say it descended
to the heir at Law of the Donor who is the Deft. This is the
point between us It is a rule of Law that I hope will not be
denied that whoever claims an Inheritance as Heir must make
himself Heir to him who was last seised of the fee 3. Co. 41. 42.
Co. Lit. 11. (3. 15. a.
Now Orrill the Son was never seized of the fee simple He
was Ten't in tail & the fee simple was only expectant The
person who was last seised of the fee was S. Orrill the Donor and
who ever claims the Inheritance must make himself heir to her
which the Pit. is not but the Deft.
In 3. Co. 42. a. Ratcliff's Case It is expressly sayed he who
claims a Rev'n or expectant as heir ought to make himself heir
to him who made the Gift S. Orrill made the Gift the Deft, is
her heir not the Pit.
In the rules which govern Descents we are not to look for
solid reasons to support them It is enough if the Law is clear &
settled The rules of Descent vary almost in every Cotmtry &
perhaps we shall find few of them founded upon the principles
of right reason or natural Justice The rules of the Civil &
Common Law are widely different & the Lawyers of both sorts
contend for the excellency of each The Inheritance descends
to the Eldest Son by the Common Law whereas by the Civil
Law I mean the Roman all the Children succeed to the Inherit-
ance The Common Law utterly excludes the half Blood By
the Roman Law they succeed in the Second Place In both
these Instances the Civil Law seems to be preferrable More
agreeable to nature & justice
1 Domat. 684 Ha. Hist. Common Law, 214.
By the rules of Descent that obtain in the law of England the
Pit. can't claim the Inheritance as heir to her Brother because
her Brother never was seised or poss'ed of the fee simple
The rule of Law is possessio fratris de feodosintplicifacUsororem
esse hcBredem The rule is mentioned by Lit. sect. 8. where speak-
ing that the half blood can't Inherit he puts the Case of a man
having a Son & a Daughter by one Venter & a Son by another
BARRADALL'S REPORTS B113
If says he after the death of the father the elder Son enters &
dies without issue the Inheritance shall descend to his Sister
but if the elder Son dies before he enters Then it shall descend
to the Bro'r of the half Blood as heir to his fa'r because says he
it is posses sio fratris &c.
Coke in commenting upon this Sect. & this rule of Possessio
fratris [106] 1 Inst. 14. 15. puts sev'l Cases where the Sister
can't inherit & they all turn upon this point where there is not
an actual pos*sion in the Bro*r for it is that must make the Sister
heir Possessio says he is qtiasi pedis positio And therefore it is
held in Ratcliff's Case before mentioned that if there be not an
actual possession Or if the Inheritance be such of which an
actual pos'sion can't be gained per pedis positionem the half
blood shall come in
Now the Inheritance here is a Rev'n expectant which it is
impossible in nature could ever be reduced to an actual posses-
sion per pedis positionem And therefore by the rules of Law
the Sist6r can't inherit but it must descend to the heir of the
Donor
Nay in some Cases tho' the Son actually enters the Sister
shall not inherit if this possession is afterw'ds defeated by legal
title as where the Wid'o of the fa'r recovers Dower ag'st him
If the elder Son dies in the life of Ten't in Dower his Sister shall
not inherit but the Bro'r of the half blood as heir to the fa'r
because the elder Son never had a rightful pos'sion 1. Inst. 15.
If the fa'r makes a Lease for Life or Gift in tail & dies And the
eldest Son dies in the life of Ten't for life or in tail the Bro. of
the half blood shall inherit because the Ten't had the Freehold
& the elder Bro'r only a Fee simple expectant Ibid,
So here the elder Bro. was in possession it is true but of what
why of an Estate tail but he had only a fee simple expectant
Vid. 2. Dam. 558-9.
Another Case put by Coke cannot be distinguished from this
A Gift is made to a man & his wife & the heirs of their two
bodies Rem'r to the heirs of the husband They have issue a
Son The Wife dies Husband marries again & has issue another
Son & dies The eldest Son enters & dies without issue The
second Son tho' of the half blood shall inherit for the eldest
Son was not actually seised of the fee simple which was expect-
ant but only of the Estate tail for the rule says he is possessio
B114 VIRGINIA COLONIAL DECISIONS
fratris &c. but here the elder Brother was not pos*sed of the fee
simple but of the Estate tail
This Case is exactly ours the Son here upon the death of his
fa'r was Ten't in tail with the Rev'n in fee expectant he died
without issue and it was adj'd that the younger Brother of the
half Blood as heir to the fa'r should inherit & not the heir of the
elder Bro*r
For the Pit. it was argued by Needier & Lewis to this purpose.
Upon the death of S. Orrill the Donor the Rev'n expectant
descended to her Son Orrill the Donee who was her heir at the
time This Descent must exclude the Deft, who cannot claim
as heir to Orrill the Son being only of the half blood but upon
his death the Rev'n must descend to his heir who is the Pit.
Upon the Descent of the Rev'n to Orrill the Son he was seised
of it & might have aliened or devised it There was not indeed
an actual pos'sion which cannot be by any possibility of an
Estate in Expectancy But if he could dispose of it surely it
ought to descend to his heir " Suppose he had actually devised
or aliened [107] it Could the Deft, then have claimed ag'st such
disposition It is not pretended The descent to his heir is
the disposition of the Law & must work as strongly as the act
of the party
The rule possessio fratris &c. relied on by the Deft, can extend
only to Cases where an actual possession can be had It would
be unreasonable to carry it to Cases where pos'sion cannot be had
which would be inconvenient & create confusion The cases
for the Deft, came not up to this The last cited out of Cokes
Inst, was governed by the Rem'r in the Deed And a Rem'r is
different from a Rev'n
The Donor never intended the Deft, should take anything in
the Land He was not bom when the Deed was made Upon
the Descent of this Rev'n to Orrill the Son it vested in him
absolutely to all intents & purposes Otherwise it would be in
abeiance which the Law will not suffer And this was much
relied on The Deft, is neither heir to the Donee nor was so to
the Donor when the Reversion happened In what right then
can he claim
To which it was replied
A great deal of pains has been taken to prove a point which
nobody denies that a Rev'n expectant upon the determination
of an Estate tail may be aliened or devised If Orrill the Son
BARRADALL'S REPORTS B115
had disposed of the Rev*n in this Case after the descent upon
him the present question would not have been made which
seems indeed to be strangely misunderstood on the other side
for it does not depend upon the reasonableness or unreason-
ableness of the thing nor upon the power Orrill had to dispose
which is admitted but upon certain fixed & settled rules of Law
which govern descents If the reason of the thing was to govern
abstracted from those rules I should be glad to hear a good &
solid one assigned why the half blood should not inherit Yet
it is upon that rule or principle that the Pit. can have any
pretence of title And it is upon another rule viz. possessio
fratris &c. that the Defts. Title depends
Every one who has a fee simple either in pos'sion or reversion
has a power to dispose but if he does not do it The Inheritance
must go according to the rules of Law which govern descents
Vid. Cro. Car. 411. 412.
To say the rule possessio fratris &c. extends only to Cases
where pos'sion can be had is a flat contradiction of the plainest &
most positive Authority & some of the best in the Law In
Ratcliff's Case it is expressly sayed that if the Inheritance be
such of which an actual possession cannot be gained the half
blood shall come in And as to any inconvenience or confusion
that may be the consequence it wants pointing out for I cannot
conceive any
It is sayed the Case cited out of the Inst, is not parrallel
because the Rem'r there was created by Deed It is true the
Rem'r to the [108] husband is created by the Deed but then
upon his death the Rem'r descended to his Son who took it by
descent & not by Purchase And so after his father's death
he was Ten't in tail with the Rem'r in fee expectant Where
then is the difference betw. that Case & this. Here the Rem'r
descended to him from his Mother In the Case cited the Son
was Ten't in tail with a Rem'r in fee expectant which Rem'r
descended to him from his father I know no difference betw.
a Rev'n & a Rem'r in fee but in the manner of the creation A
Rev'n is where the Owner does not part with his whole Estate
Then it is sayed to revert or come back to him after the deter-
mination of the particular Estate A Rem'r is where the Owner
parts with his whole interest giving a particular Estate to one &
the fee to another which is called a Rem'r And such Rem'r
B116 VIRGINIA COLONIAL DECISIONS
in fee will descend in the same manner as a Rev'n in fee. There
is no kind of diff . betw. them as to the business of descent
The disposition of the Law is doubtless as strong as the dis-
position of the party but we say the Law disposes in our favour
which is the point to be determined
The Donor's Intention in the Deed is quite out of the Case
We are contending about the Descent of the Rev'n & claim
nothing under the Deed or that is disposed of by the Deed
It's no good consequence that because the Rev'n descended
to Orrill upon the death of his Mother which we admit that
therefore it must descend from him to his Heir The Cases
cited prove the contrary & clearly shew that a Rev'n expectant
does not descend in the same course an Estate in pos'sion does
There are other instances of this in the law If there be father &
Son & the Son purchase land & make a lease for life & dies the
reversion descends to his Uncle who dies the father cannot be
heir to the Uncle of this reversion because he was never actually
seised 1. Inst. 11. 6. And as to the Argum't that the fee would
be in Abeiance if it did not vest absolutely in Orrill the Son
Every Estate in expectancy may be sayed to be in Abeiance
(Vid. Plunket & Holme 1 Lev.) for the word is derived from the
French bayer to expect 1. Inst. 342. b. And there is no incon-
venience that a Rev'n expectant upon an Estate of Freehold
should be in Abeiance for the true reason why the Law will not
suffer the fee to be in Abeiance (which I admit it will not
except in some instances ex necessitate) is because there would
want a Ten't to the Freehold Ag'st whom a praecipe might be
brought But this cannot happen where the fee is expectant
on the determination of an Estate tail because there is a Ten't
of the Freehold viz. The Ten't in tail The rule in truth is
only that the Freehold shall not be in Abeiance for there are
many instances [109] where the fee may As in the Case of a
Lease for life Rem'r to the right heirs of I. S. The fee simple is
in Abeiance during the life of I. S. 1. Inst. 342. b. So if Ten't
in tail grants all his Estate The Grantee has only an Estate for
life of Ten^t in tail And the fee or Inheritance of the tail is in
Abeiance during the life of Ten't in tail Lit. S. 650.
Upon the whole tho* we are neither heir to the Donee nor was
so to the Dornor when the Reversion descended from her Yet
in as much as the Rev'n was only expectant by the rules of Law
in Cases of Descent we are intitled to this Rev'n because we are
BARRADALUS REPORTS B117
now heir to the Donor & there never was nor could be such
pos*sion as the Law requires to make the Sister that is the Pit.
take as heir to her Brother
Judgm't fr Deft, by the Opinion of Lee, Tayloe, Grymes &
Carter
Randolph, Custis & Robinson Fr Pit.
Edwards vs. Bridger
This was an Appeal in an Action of Debt from the County
Court The Pit. had brought a former Action In which Judgm't
was given ag'st him but it was not entered quod Querens nil
capiat per billam This former Judgm't was pleaded in bar to
the present Action There was a Demurrer to the Plea &
Judgm't in the County Court ag'st the Pit. But the Judgm't
was reversed here & the Pit. had Judgmt. for his debt
The Court remembered a Case of this kind sev'l years ago
where they had given the like Judgm't But note in the Case
of Palmer & Word Oct. 1738 (which see postea Page 268) this
same point was insisted on but not regarded by the Court
CuRLE vs SwENEY Ejectment
The Pit. being seised of a Lot of Land in the Town of Hampton
abutting upon the river Hampton & so described in the Grant
from the Feoffees of the Town Land to the Pits. Ancestor The
Deft, in the Pits. Infancy upon a suggestion that he had by
Industry gained some Land out of the River obtained a Grant
from the Crown of a small parcel of Land to be made out of the
River before this Lot & builds a House upon Posts directly
before the Lot under which House the Water ebbs & flows So
that [1 10] the Ground it stands upon is between high & low
Water Mark The Grant from the Crown of which the Pits.
Lot is parcel is bounded by the River or abutting upon it & the
River is navigable
The Pit. brings this Ejectm*t to recover the House a'fs'd
built by the Deft, before his Lot
The Q. is properly this when the King Grants Land bounded
by or abutting upon the Sea or a Navigable river where the
Water ebbs & flows Whether the Grantee has not a right to the
Land betw. high & low Water Mark Or to any Land that may
be gained out of the River
B118 VIRGIl^^IA COLONIAL DECISIONS
All Lands here axe held mediately or immediately of the
Crown And so they are in England And therefore must have
been first granted by the Prince to the Subject Now there are
numberless Grants from the Crown in England bounded by the
Sea River &c but no one I believe ever saw a Grant of Land
betw. the high & low Water Mark Yet such Land may be
parcel of the Mannor of a Subject 5. Co. 107. Sr. Hen Constable
from whence I think it follows that by the Grant of Land abut-
ting upon or bounded by a river the Grantee has a right to the
Land or Soil betw. the high & low Water Mark
I conceive too that if the Water leaves the Land or the Grantee
by Industry gains Land out of the Water it belongs to him & not
to the Crown
It has indeed been a question Where the Salt Water has left a
great quantity of Land upon the Shore whether the prince shall
have it by his Prerogative or the Owner of the Land adjoining
It is made a Quoere in Dier 326. b. & he refers to sev*l Authors
But he cites a Case 43. E. 3. of the Abbott of Ramsey who was
sued on behalf of the King for 40. a. of Marsh The Abbot pleaded
that he held such a Mannor next the Sea where there was a Marsh
which was sometimes lessened by the ilux & increased by the
reflux And the title was found for the Abbott And the
Reporter says P. 17. Eliz. in such a Case in the ExcheqV about
Sandwick a Verdict was solemnly given ag'st the Queen
But there is a Case in the Margin of the Book of the Corpora-
tion of Rumney adj'd 8. Eliz. which is more express It is thus
If the Sea marks are gone .so that it cannot be known whether
there ever was Land there the Land gained from the Sea belongs
to the King but if the Water covers the Land at the flowing &
leaves it at the ebbing so that the Sea Marks are known if such
Land is gained from the Sea it belongs to the Owner
In this Case the Water ebbs & flows upon the Land claimed
by the Deft. But if it was actually gained out of the Water by
Industry it belongs to the Owner of the Land adjoining who
is the Pit. It is plain then the King could not grant this Land
which by Law belonged to the Subject & which he in effect had
granted before The Defts. Grant is unusual & the first of the
kind in this Country or I believe in any other subject to the
Crown of England I might add further that this Grant was
obtained in the [111] Lessor's Infancy And if Grants of this sort
are encouraged No man who has Lands upon Navigable rivers
BARRAD ALL'S REPORTS B119
can be secure of the greatest advantage attending them viz. a
Landing prospect &c.
For the Deft. It was not attempted to support the Grant
from the Crown but it was insisted that the Deed from the
Feoffees, of the Town to the Pits. Ancestor did not take in the
Land where the House stood for that the number of Chains
mentioned in the Deed did not reach so far Which was admitted
to be true
But it was answered
That the Deed was bounded by the River The Town was laid
out upon the River And the Kings Grant out of which the Town
Land was taken was abutting upon the River By which the Pit.
had a right to the Land left by the River if any was really left
but that in this Case there was none left for the Soil upon which
the house stood was that upon which the Water ebbed & flowed
And it was further urged to shew the inconvenience of allowing
the Deft's pretensions that by such Practises as the Deft, had
used there might not in time be a Landing place left to Hampton
Town
Judgm't Fr Pit. Fr. ioL Cur.
Coleman & Ux'r vs Dickenson In Cane,
Ja's Alderson & Ann his wife by Deed dated 10 July 1712
reciting that Ann at her Marr. was pos'sed of 3 Slaves And that
by the Law they were real Estate barg & sold the Slaves to one
Hunter for 60 years if the said Ja's & the Negro's sho'd so long
live In trust And to the use of the said Ja*s & Ann for their lives &
to the use of the Surv'r if the Negro's sho'd so long live With this
proviso that if Ann sho'd die before Ja's it sho'd be lawful for
her by Will to dispose of the Negro's after his death And with
this further proviso that if the Negro's had any Increase during
the term that they sho'd be taken care of till they were fit to be
removed from their parents
The husband died first The wife who had made a Will before
his death repubUshed it afterw — ds And by this Will she has
taken upon her to dispose not only of the 3 Negro's mentioned
in the Deed but also their Increase to the Pit. Eliza.
The Q. is whether as the husband died first the wife had power
by this Deed or otherwise to dispose of the Negro's or their
Increase
B120 VIRGINIA COLONIAL DECISIONS
When this Deed was made it was the genl Opinion that a
Womans Slaves did not vest in her husband by the marr. This
was the construction of the Act of 1705 by which Slaves were first
made a real Estate It will [112] however be allowed that this
was a mistaken Opinion & a wrong Construction of the Act.
The Explanatory Act of 1727. having declared that " where any
** Slaves have been or shall be conveied given or bequeathed
** or have or shall descend to any feme covert the absolute
** property is thereby vested in the husband"
After repeating these words I may venter to take it for granted
that the Slaves of Ann Alderson vested in her husband by the
marriage And it will scarce be pretended I presume that the
husband's mistake as to his right which appears in the recital
of the Deed did at all lessen or destroy that right
From these premises these two conclusions follow 1. That
the Wife can have no pretence of right but what she can derive
from the Gift or disposition of her husband And 2. that as the
husband had the absolute property in these Slaves So much of
that property in them & their Increase as was not disposed of
by the Deed now before us remained in the husband And upon
his Death must go to his Representatives
The business then is to see how far the property of these Slaves
or their Increase is disposed of by this Deed
It is scarce worth observing that this Deed is to be considered
merely as the Act of the husband It is well known a feme
Covert cannot make a Deed in any Case Except where she is im-
powered by some particular Law or Agreem't so to do But as
the wife here had really no Interest in the thing conveied her
joining or not joining in the Deed cannot differ the Case
The Deed then I conceive ought to be considered thus A hus-
band conveys his Slaves to Trustees for 60 Years if he sho*d
so long live To the Use of himself & his wife & the Surv'r for
life With power to the wife if she died first to dispose by Will
after his death I say nothing here of the second proviso which
regards the Increase That I shall consider by & by
What is there more in this Deed than a limitation to the hus-
band & wife for life with a power to the wife to dispose upon the
contingency of her dying in her husbands life time
If this contingency never happened Can she have a right to
dispose by virtue of this power Certainly no and that is truly all
the question in the Case
BARRADALUS REPORTS B121
There is surely some difference betw. an absolute power &
a limited one or a power that is to arise upon some future con-
tingency If a man give his Ex'ors a power to raise a sum of
money out of his Estate in case he leaves a Dau'ter This power
cannot be executed if he leaves no Dau'ter because it is to arise
upon that Contingency & not otherwise So here the power given
to the wife is not a power of disposing at all Events but only
upon the contingency of her dying in her husbands life time
The words of the Deed are not only plain to this purpose
but it was apparently the intention of the Parties for under the
mistaken notion they were that the Slaves did not vest in the
husband they [113] concluded that if the wif e su vived she
would by Law have a power to dispose And therefore there could
be no necessity to provide for that but only that she might dis-
pose during the coverture if she died first.
Thus neither from the words of the Deed nor the intention
of the parties is there the least ground to infer that an absolute
power of disposing was designed to the wife but only a power
upon a contingency which not happening She had no power of
disposing by virtue of this Deed And if she had none by the Deed
she had none at all As I hope I have demonstrated
Let us consider a little further the nature of this Deed. It is
a Conv. to a Trustee for 60 years if the husband so long lived.
This Trust & term then were to continue no longer than the
life of the husband And so upon his death they both expired &
determined And consequently the power which was to be exe-
cuted during the Term must cease and be void Neither the Trust
nor the Term nor the power given to the wife from the frame &
nature of this Deed could possibly subsist after the husbands
death
As to the mistaken notion of the parties with respect to the
right to those Negroes As that mistake could not alter or destroy
the husbands right So neither can it be any Argum't to give
this Deed a different construction or operation from what it
would have had if the husband had known it perhaps if he had
he never would have executed this Deed at all
If therefore we regard the operation of this Deed in point of
Law Or if we regard the intention of the parties in making It
is plain the wife had no power of disposing but upon the con-
tingency of her dying in her husbands lifetime And therefore
her disposition to the Pit. is void
B122 VIRGINIA COLONIAL DECISIONS
Equity will often supply a defective excon of power But I
never read or heard that a Coiut of Equity would create new or
different powers from those created by the P'ties Or extend or
enlarge them beyond what the words of the Deed or the intention
of the P'ties would carry them Yet this is what must be con-
tended for to support the Wife's disposition in this Case The
power created by the Deed is upon a certain contingency which
never happened And yet they will have it that the wife may dis-
pose by virtue of that power. What is this but setting up a
different power in the wife from that given her by the Deed
As to the Increase of the three Slaves mentioned in the Deed
we have been speaking of which are the other six Slaves claimed
by the Pit. under the Will of Ann Alderson I really can't even
conjecture what may be sayed in support of the Pits, title to
them
The Bill (whether designedly or not I can't tell) does not
mention those six Slaves as the Increase of the three tho' I
daresay they will be [114] granted to be such but only sets forth
that Ann Alderson devised the three Slaves in the Deed & six
others without shewing her title to them This is one of the
Causes of Demurrer that it is not suggested she had any right
to the Increase or to dispose of them
I have already observed And I hope it will be granted that so
much of the property of the three Slaves & their Increase as is
not disposed of by the Deed remained in the husband the whole
property vesting in him by the marriage
Now it is plain from the whole tenor of the Deed as well as
a particular provision it that the Increase were never intended
to be within the Trust thereby created The term is limited for
60 years if Jas. Alderson & the 3 Negros sho'd so long live So
that if the three Negroes had died the whole Trust had deter-
mined
The proviso which gives the wife a power of disposing upon
the contingency mentioned takes notice only of the 3 Slaves
without saying anything of the Increase All which is sufficient
to shew that they were never intended to be comprized within
the Trust at all
But there is a second proviso which puts the matter beyond all
doubt By this there is an express provision concerning the
Increase that they shall be allowed to remain with their Parents
till they were fit to be removed
BARRADALL^S REPORTS B123
So that whatever the determination may be with respect to
the wife's right of disposing the 3 Negro's I conceive the matter
as to the Increase will admit of no doubt or question
On the other side it was urged that the limitation of the Trust
being to the use of the husband & wife for life & to the use of the
Surv'r that the wife surviving was well intitled to the Slaves
mentioned in the Deed And that the property of the Increase
must follow that of the Parents
And so it was decreed by the Court
BucKNER vs. Chew & aL In Cane.
The Case was shortly this Chew the Defts. father in 1707
sold & conveied to the Pits. faV two parcels of* Land cont'g by
estimation 2520a's be the same more or less And in the Deed
of Conveiance were the usual Covenants in the case of purchase
Great part of the Land was recovered from the Pit. by an
elder title
The Bill suggested that Chew after the Conveiance to the Pits.
[115] fa'r gave to the Defts. (some of them his Sons & others
married to his Dau'ters) considerable Estates & afterw'ds died
Insolvent And the End of the Bill was to have a discovery of the
Estates given to the Defts. And that the same might be subjected
to satisfie the Pit. the value of the Land he had lost
The Defts. by their Answ'rs insisted that the Estate given to
them by their fa'r was so given before the Pit. was evicted & so
not done with intent to defraud the Pit. And that the Conveiance
from Chew being of 2520 a's more or less the Pit. could have no
right to a remedy for the deficiency nor unless evicted out of the
whole
Two of the Defts.J. C. one of the Sons & Johnston who married
one of the dau'ters also pretended by their Answ'rs that the
Estate given to them was in consideration of Marriage of which
some proofs were taken There were also Some proofs concerning
the value of the Pits, loss & of the Estate given the Defts.
Barradall Fr. Pit. The points in this Case are two 1. Conv.
being more or less whether we can have remedy for deficiency.
2. Estate given to Defts. before eviction whether subject to
Plt.s Demand
If these in Plt.s fav'r 3. How far Plt.s loss & Estate in Defts.
hands are ascertained.
B124 VIRGINIA COLONIAL DECISIONS
1. Point a strange one — common form of Deeds — words
of course or at most intended to supply only little mistakes
In construction of Deeds Intention to govern What was con-
tract & intent here
Grantor in cons, of ;f.l20 St. conveys two parcels of Land
containing by Estim. 2520 a's be the same more or less Coven'ts
to Warrant premes & every part thereof — that he is seised
in fee & has good right to convey — that Grantee shall quietly
enjoy and that he will make further Assurance of all & singular
before granted prem*es
This usual form & Gov'ts of purchase for va. cons. No instance
that (more or less) must oblige purchasor to be satisfied with
half he bought.
Here is a val. cons, equivalent to Land sold at time
Reasonable to suppose so much was agreed for
Manner of penning Gov'ts Shew intent further
If Gov'ts not intended to extend to quantity Would have been
exception.
Pannel's Deed to Ghew Shews what Ghew intended to purchase
& the same he intended to sell
These Circumstances prove contract & intent More or less
words of course added currento calamo can't controul plain
Agreement
If words were unusual something might be inferred
Notion new No Authority.
116] Universal concern to purchasors — If but 100 a's we
must have been contented according to Doctrine of Deft.
Introductory of fraud
2. point. Whether the Estate given Defts. liable being before
eviction 2 of Defts. J. G. & Johnston pretend to something of
a cons, viz marriage It will be therefore 'proper to consider
1. as voluntary Then the pretended cons.
As voluntary fraudulent & void ag'st Gred'rs.
By Common Law & old Stat, fraudulent Gifts to deceive
Cred'rs void 13. Eliz 5 useful Stat, made [sic\ .
For this point see Prec. Ch. 521. Case of Parslow & Weedon cited It should
seem by that case that a voluntary disposition of lands even to a stranger is good
ag't a bond Cred'r Sed. 2. And Note it is sayed not to be within Stat, ag't fraudu-
lent devises w'ch is true. But still may be within Stat's ag't fraudulent com's
ee also. Eg. Ab. 149. 7. S. C.
Preamble to this effect For avoiding & abolishing of feigned
covinous & fraudulent Feoffm'ts Gifts &c. devised to delay
BARRADALL'S REPORTS B125
hinder or defraud Cred'rs & others of their just & lawful Actions
Suits Debts Acco'ts Damages Penalties &c.
Enacts that every Feoffm't Gift &c. by writing or otherwise
made to or for any intent or purpose before declared or ex-
pressed shall (ag'st the person whose Action Sec. are shall or
might be any wise disturbed hindered delaied or defrauded)
be void &c. Any pretence colour or feigned cons, notwithstand-
ing
Proviso not to extend to Gifts upon good cons. & bona fide
Act penned with Care & caution
Every voluntary Gift by Person in debt fraudulent within
this Stat.
Law supposes so tho' perhaps not done with direct intent
to defraud
Cases Holcraft Di. 294. b. Marg. Fletcher & Lady Sedley
2. Vem. 490. Sr. Anth*o Bateman 1. Mod. 76.
Obj. Here is a Gift made before Pit. damnified
Q. then is whether this differs the Case I conceive not
Plain. 13. El. had in view Cases of this sort Words are to
defraud Cred'rs & others of their Actions Suits Debts Damages
&c.
In Pauncefort & Blunt cited in Twine 3. Co. 82. resolved
it extends not only to Cred'rs but to all others who have cause
of Action or Suit Penalty or Forfeiture
Sed Vide. Talbot.
Here we had cause of Action immediately upon Gov't that he
had a good title Such Actions not new here Washington &
Wyat But if that was not the Case We are within the provision
of the Act Words are ** Ag'st P.sons whose Actions &c. are
shall or might be anyways delaied hind'red or defrauded
Now that we have cause of Action can't be denied & our
Action is hind'red & defrauded by these Conveiances
Suppose a Bond for paiment of Money at a future Day
Act always construed liberally
Pauncefort & Blunt before cited One Indicted of recusancy
[1 17] Doctrine on the other side encouragem't to fraud Men
will not be afraid to dispose of bad titles
General concern to purchasors
Law implies a Trust in Cases of this sort Twine 81
Consider now Case of J. C. & Johnston
B126 VIRGINIA COLONIAL DECISIONS
Johnstons says upon a treaty of Marr. with the Grantors
Dau'ter in 1723 he promised hina as a portion 1000 a's of Land &
a Negro boy worth ;^.150. That he rec'ed some things which
he mentions but not near the value
No proof of this promise but seems contradicted by two Wit-
nesses Nich'o & Ehz. Hawkins
Defts. Oath no Evidence Would not be so ag'st Grantor nor
cons, a Cred'rs Impossible to prove negative viz. No such prom-
ise Circumstances alone are all that can be expected If Defts.
Oath to prevail singly Act easily evaded Dangerous
Less reason here because Answer contradicted in other points.
He says he had only two Negros We prove by 3. Witn's N.
Hawkins Franklin & Graves that he had 3. & by Trible & Frank-
lin that he had 220 a
J. C. says his fa'r being indebted to one Cary told him if he
would help to pay that debt he would give him 335 a of Land &
4 Negro's That he paid £25, his fa'r in 1724 put' him in pos'sion
& in 1728 in cons, of H. B.s consenting to Defts. marr. his
Dau'ter by Deed made same over & 2 Slaves more
No proof of this Money being paid which might easily be had
Discourse betw. Chew & H. B. proves Estate was given before
marr. & before that discourse So could not be to induce H. B.s
consent We have Deed. cons, only ;^8. & natural Affection
Defts. Oath not to prevail ag'st this
But let us consider this in the strongest light for Defts. In
one case fa'r gives his dau'ter a portion but no Settlem't made
In the other he gives his Son an Estate to procure a good match
but no Settlem't neither
It is Settlem't only can make a val. cons, for then they are in
nature of Purchasors Settlem't after marr. not good ag'st
Cred'rs Upton & Bassett Cro. El. 445. Cro. Ja. 158.
2 Bac. Abr. 608.
If this allowed easy for a man to cheat his Cred'rs
Marr. only val. cons, where Settl'mt
But there being no Settl'mt the marr. makes no difference but
the Gifts are equally voluntary as if there was no marr. in the
case
As to Johnston I say he has not proved any such promise
on his marr. as he pretends Or if there was As he made no
Settl'mt he is not to be considered as a Purchasor
BARRADALL'S REPORTS B127
•
As to J. C. he proves nothing of the money he pretends to have
paid. Or if he did he could only be a Purchasor pro tanto. As
to his marr. it is a meer farce to insist upon it But there is no
proof the Est. [118] was given in Cons, of that Marr. The Deed
of Conv*e proves it was upon another cons. viz. natural love &
£%. & that ought to prevail before Defts. Oath If there was
proof of the ;£".8. being paid he might be a Purchasor for so much
But as the Deed contradicts his Ans'r as to the quantum paid
& there is no proof of either in such an incertainty the Court
must reject both as. I hope they will
The rule laid down in Twine's Case is that a Gift which defeats
others sho'd be made on as high & val. cons, as the things which
are thereby defeated are according to this rule nothing but
money can be a val. cons, to defeat a debt And then the marriages
are nothing to the purpose
If the Court is of Opinion that the Estate in the Deft.s hands
ought to be subjected to the Pits demand It will be proper in
the next place to see what the loss & damage of the Pit. is.
Upon the proofs by moderate computation it was estimated
at two hundred & forty pounds
If the Court are not satisfied with the computation they
must direct a trial at Law on a quantum damnifkatus
The next thing to be considered is in what manner the Estate
in the Defts. hands is to be made liable And I take it the course
of Equity is to decree the Estate to be delivered up & sold to
satisfie for the Grantees are considered meerly as Trustees as
has been already observed
But if this shall be thought severe as the Defts. have settled
upon the Lands we hope they shall be accountable for the full
value now for if the Estate was in the hands of the Heir or
Adm*or we sho'd recover according to that value
The first point was only spoke to by the Defts. Upon which
A great majority of the Court were of Opinion that the Pit.
ought not to be relieved as the Conveiance was of so much more
or less unless the Pit. had been evicted out of the whole Which
I think was a strange determination
Knight vs. Triplett In Cane,
The Deft, made a purchase of certain Lands Of part whereof
Pit. had a Lease for Years which was not recorded The Deft.
B128 VIRGINIA COLONIAL DECISIONS
had notice of this Lease before his purchase Yet brought an
Ejectment & had Judgm't at Law And this Bill was brought
to be relieved ag'st this Judgm't And to establish the Lease
ag'st the Deft, in regard he had notice of it [119] and so he was
not deceived but with respect to him it was the same as if it had
been recorded.
To this Bill the Deft. Demurred And to support the Demurrer
it was argued that by the Act of Assembly of the 8. Geo. 2. c. 6
this Lease not being recorded was void ag'st a Purchasor.
The words of the Act are to this purpose All Deeds &c.
whether for passing Freehold or term of years not recorded —
shall be void as to all Cred'rs & subsequent purchasors
It is a rule that Equity never decrees ag*st an Act of Parl't
which indeed would be transferring the Legislative power
2. & vide 1 W'ms 620.
It is true this Act was made to prevent Purchasors being de-
ceived & here the Purchasor had notice & so could not be de-
ceived
But I answ'r the Act hats made all Deeds not recorded void &
there is no exception where the Purchasor has notice. And as the
Act makes no exception neither can a Court of Equity
This notice can never make that good which the Act has
declared void Besides Deft, might think he might safely pur-
chase notwithstanding the Lease as the Act had declared it void
& that is the truth
In this view it must bring a strange hardship upon the pur-
chsor He is informed of an Incumbrance Takes advice of a
Lawyer who tells him the Incumbrance can't affect him because
an Act of Pari, had declared it void And yet afterw'ds this
Incumbrance shall be set up under pretence of notice
There is no instance of this in the Law but there are Cases
exactly parrallel ag'st it
2. & vide Blades vs. Blades Abr. Ca. Eq. 358.
By the Stat. 27. El. 4. ag'st fraudulent Conveiances it is
Enacted that all Deeds made to defraud or deceive Purchasors
shall be void This is very like our Act — All Deeds not recorded
shall be void
A man makes a purchase & has Notice before of a Deed that
was fraudulent within this Stat. And it was adj'd that he should
avoid the fraudulent Deed notwithstanding the notice for this
BARRADALL'S REPORTS B129
reason Because the Act had by express words made it void &
his notice could not make that good which the Act had declared
void. Slandens Case cited in Goochs 5. Co. 60. b.
The Case of Porter & Jones was much harder than this for
there was a purchasor for val. cons, without any kind of remedy
whereas the Pit. may have remedy for Damages ag'st Thompson
But there the Court would not relieve because this very Act had
declared the Deed was not binding
Ante page 8&
The hardship can never induce the Court to decree ag'st a
positive Law Besides the hardship is not so great as there is a
remedy ag'st Thompson And the hardship may be greater upon
the purchaisor [120] who has paid the full value of the Land
upon a supposition the Pits. Lease was void & who purchased
under the sanction of the Act
The Demurrer was allowed & the Bill dismissed with Costs.
Sed 2.
APRIL COURT MDCCXLL
Senior vs, Morris
Error to reverse a Judgm't of the County Court of Caroline in
an Action of Debt brought there by the Deft, ag'st the Pit.
Senior
The Pit. below declared on a Bond in the Penaly of £40.
The condition of which was to stand to the Award of Fleming &
Baber arbitrators provided they shall agree & if they disagree
then to the award of an Umpire to be chosen by them
The Deft, craved Oyer & pleaded no Award The Pit. replied
that the Arbitrators took upon them the burthen of the Award
but disagreeing in several matters they chose one Scott an
Umpire And that they & Scott having taken upon them the
burthen of the Award they made an Award which is set forth
It is a Maisterpiece of Nonsense
The Deft. Demurred Judgm't for the Pit. & a Writ of Enquiry
The Jury gave ^5.12.8. Dam's
Judgm't entered for the Dam's & not for the penalty of the
Bond
On Demurrer Judgm't ought to have been given for Deft.
Obj. 1. The Award being made by the Arbitrators & Umpire
is not according to the Submission or the power given them
B130 VIRGINIA COLONIAL DECISIONS
The power given to the Arbitrators is to determine if they
can agree If not they are to chuse an Umpire
The Award recites that the Arbitrators could not a^ree Yet
they join in making the Award
Upon their disagreement their power was determined & the
Umpire was solely to determine
The Arbitrators & Umpire are different Judges & cannot have
a concurrent jurisdiction 1 Sid. 455. Coppin & Humard 1 Dam.
540. 2.
There never was an instance of such an award
Arbitrators can't determine part & Umpire other part unless
expressly so provided 1. Ro. A. 262. 7. 8. Danv. 542.
[121] Umpire in the common signification denotes a person
that is to make an end if others cannot
It is true if a submission be to four & to the Umpirage of J. S.
they may all join but it is otherwise if their power is divided
1. Bui. 184. which is in point
Obj. 2. The Award is uncertain
An Award is in the nature of a Judgment & ought to be certain
Danv. 543. 1. & Notes ... & ought to be wholly decisive.
Can there be say'd to be certainty in Nonsence
Here is nothing actually awarded It is say'd they agree the
Gaming to be intirely false Gaming and not axiything to be re-
covered that was supposed to be won by gaming & that the
said Senior pay all Costs &c.
Nothing certainly awarded. Not that Suits shall be dismissed
Nor is it say'd what Costs Senior shall pay It does not put an
end to the Controversie No Rel. . to be executed. Ex parte.
An Award to pay Costs of such a Suit generally not good
1. Sal. 75. Otherwise if such as Master shall tax [sic]
But here it is not sayed the Costs of what Suits
Obj. 3. Judgm't wrong should have been for the penalty &c.
Judgm't reversed
Smither vs. Smithers. Lessee App. from Glo'ster
Ejectm't for the moiety of 864a of Land A special Verdict
is found Upon which the case is ** John Smither seised of the
said 864a in fee & having issue 8 Sons devises as follows ** I give
*' to my Wife all my full & whole Estate moveables & immove-
" ables so long as she lives the wife of John Smither And at her
BARRADALUS REPORTS B131
** death All to be equally divided among their Children only
'* Moses Smither I give & bequeath besides one young Cow&
** more I give & bequeath to my Son Ambrose one feather bed &
** furniture & one young Mare & then the full & whole Estate
* to be equally divided amongst them under before as the Land
" & all " [sic]
The Sons entered & were seised & 3 of the younger Robert
Richard & Ambrose sold & conveied their right to their Bro'r
Moses who is dead & the Lessor is his Heir The Deft. John
is the eldest Son of Testor.
The question in point of Law is Whether the Sons by the
devise to them have an Estate in fee or for life only
But the Verd't is very imperfect It is not found that the
testor's wife is dead And by the words of the Will the Sons can
have nothing till after her death The Lessor cannot therefore
have Judgm't on this Verd't.
[122] Then the County Court have given Judgm't for a Moiety
of the 864a whereas if the Sons take an Estate in fee it is plain
the Lessor is not intitled to so much for Moses her fa'r is ex-
pressly excluded by the Will She has only the right of 3 of the
other Sons There were 7 besides Moses She cannot then be
intitled to more than 3 sevenths The County Court have there-
fore certainly erred in giving Judgm't for a Moiety And the
Judgm't must be reversed
But I conceive the question in point of Law is ag'st the Lessor
And that the Sons have only an Estate for life by the devise
above & that the Reversion descended to the heir at Law the
Deft.
The testor devises his full & whole Estate moveables & im-
moveables to his wife for life if she continued his Widow for so
it must be understood And at her death All to be equally
divided among their Children Then gives some particular
Legacies & concludes thus Then the full and whole Estate to be
equally divided amongst them under before as the Land &
all.
These are all the words of the Will that concern the present
question By the first words " his full & whole Estate moveable
& immoveable " there is no doubt but his Lands will pass And
so in consequence they will by the word all in the devise to the
Children but then there are no words to shew what Estate or
interest in this All the Children are to take It is only to them
B132 VIRGINIA COLONIAL DECISIONS
to be equally divided No mention of heirs or any other word
to shew the testor intended an Estate of Inheritance or any
more than an Estate for life As to the words ** equally to be
divided*' they import no more than that the Children shall hold
separately but do not shew how long they shall hold Nor is
there an)rthing in the latter part of the Will that shews any
intention to give an Estate of Inheritance to the Children or
more than an Estate for life the words import no more than
what was sayed before ** My full & whole Estate is to be equally
** divided between them under before as the Land & all.*' The
words (under before as) are insensible but the whole clause
can import no more than this My full & whole Estate to be
equally divided as before the Land & all So that it is only
repeating what was sufficiently expressed before with this
difference only that the Land was not expressly mentioned before
tho' it was sufficiently implied by the word immoveable There
is nothing here any more than in the former part of the Will to
shew what interest or Estate in the Land the Children shall
have
It is a common doctrine & not to be denied that the intention
of the Tes*tor is the rule for expounding provided this intention
be sufficiently expressed in the Will & is not contrary to the rules
of Law but where the intent is not plain the same construction
is made of Wills as of Deeds Wilds Case.
Upon this account the Law dispenses with all form in Wills
Nor are the saAe words necessary to create an Estate of Inherit-
ance upon a Will as upon a Deed. Yet there must be some word
or expression in the Will to shew a tes'tor intends such an Estate
Or else it will no more [123] pass by a Devise than it will by a
Conveiance
And I take it to be a settled rule in the construction of Wills
that if a man devises his Lands or all his Lands to another with-
out more or without adding some word whereby it may appear
he intended more than an Estate for life that only an Estate
for life passes by such a Devise 1. Sal. 235.
Barry & Edgworth Eq. abr. 178. agr'd
The words here are ** All to be equally divided among my
Children " Neither the word (All) nor the words (equally to
be divided) shew any intent that the Children should have longer
than for life The word (All) can only import All the particulars
before specified that are given to the wife as I shall shew more
BARRADALL'S REPORTS B133
fully presently And (equally to be divided) import only that they
shall hold separately but not how long as has been adjudged in
many instances
A man devised Lands to his Sons & Daughters to be equally
divided And held They had only an Estate for life & not in
fee for the equal division does not go to the continuance of the
Estate but to the several occupations 1. Ro. Abr. 834. 13. By
Coventry L*d Keeper upon advice with Justice Jones who cer-
tified the Law to be so.
A man having three dauters devised his Land to his wife for
life & after his death to his three daughters to be equally divided
Adj'd that his dauters had only an Estate for life King vs. Rem-
ball l.Ro. Abr. 834. 1.
This is exactly the Case here
One devised all his Lands & Goods after his debts & Legacies
paid to R. T. & M. his Children to be equally divided between
them Adj*d only an Estate for life passed to the Children Dickens
vs. Marshall Cro. El. 330. Mo. 594. pi. 804. S. C.
These Cases sufficiently prove that the words equally to be
divided do not enlarge an Estate given but refer only to the
several occupation But then here are the Words my full &
whole Estate in the first part part of the Will in the Devise to
the wife And also the same words with the addition of Lands &
all in the latter part of the Will And these are the words if any
that can possibly carry a fee But I conceive they cannot by
any reasonable intendment or construction in this Case
I shall readily agree that if a man devises All his Estate or his
full & whole Estate as here or all the residue of his Estate with-
out more that a fee will pass by such Words And this is all that
can be collected from the great Case betw. the Countess of Bridg-
water & the D— ss of Bolton 1. Sal. 236. & 6. Mod. 106. Tho'
in that Case It was not those words alone which influenced the
Opinion of the Court There was a power given by the Will to the
E. of Bridgwater the Devisee to give to his Children as he thought
convenient which further evinced the tes*tor intended a fee
But I conceive a great difference betw. a Devise in that manner
& this now before us
It is certain that the word Estate in a Will may sometimes
[124] comprehend both the thing & the tes'tors interest in it
but it is as certain that it sometimes signifies only the thing &
not the interest of the tes'tor in that thing
B134 VIRGINIA COLONIAL DECISIONS
Where a man gives all his Estate without more it is reasonable
to suppose he intends both the thing & the interest but where
a man gives all his Estate for life There it is plain he can't
intend all his whole interest & therefore Estate in that case can
be intended only of the thing
In the Case of Hanchet & Thekwall 3. Mod. 104. the Devise
was thus I give & bequeath to my Son Nich my Houses in West-
m'r And if it please God to take away my Son Then I give my
four dau'ters share & share alike Here the word Estate re-
ferring to the Houses it was held & agreed that the tes'tor could
not mean his interest but only the Houses & that therefore by
those words the dau'ters took only an Estate for life
Now in this Case I apprehend it to be extreemly plain that
the tes'tor by the word Estate meant only his Lands & Goods &
not his interest in them- He gives his full & whole Estate move-
ables & immoveables to his wife for life I would ask what Idea
it can be supposed the tes*tor annexed to the term Estate here
Certainly he could not mean his interest in his Estate because
he gives it to his wife for life only He must then understand
by it the thing only which indeed he hats further explained by
adding the words moveable & immoveable And it is in effect
no more than if he had sayed I give my Lands & Goods to my
Wife for Life.
Then follows after my wife's decease all to be equally divided
among my Children All what ? Why all his Lands & Goods or
his Estate moveable & immoveable for they are the same Not
all his interest in the lands & goods The word All must neces-
sarily refer to the things the particulars before specified
And it appears by the case of Dickens & Marshall before cited
that where a man devised All his Lands & Goods after his debts &
Legacies paid to be equally divided among his Children that
they had only an Estate for life And the same point appears in
Pettywood & Coke Cro. El. 53. post.
The latter words in the Will are the same in substance with
those that go before. After giving some legacies he says Then
the full & whole Estate to be equally divided among them
(under before as) Land & all Now what can be the full & whole
Estate meant here but that he had mentioned before & given
to his wife When a man makes use of the same expression twice
in the same Will it is reasonable to suppose he means the same
thing in both places It is I think beyond all question that by
BARRADALL'S REPORTS B135
the words full & whole Estate in the devise to his wife he could
mean only the thing that is his Lands & Goods & not his inter-
est in them And must we not then suppose he meant the same
thing in the latter part of his Will The insensible words ** under
before as '' which I think must be understood as before plainly
refer to the former devise If then the former Devise does not
carry a fee Neither can this And here by the addition of the
Words ** Land & all '* I think it is still further [125] evident
that by Estate he meant his Land & not his interest in it And if so
there are no words to give the Children more than an Estate for life
If it be objected that the tes'tor perhaps might think that by
giving all his Lands & Goods to his Children in fee would pass I
answer a tes'tors intention is to be collected from the words of
his Will & not from suppositions & imaginary notions The
Law gives a favourable interpretation to Wills upon a supposi-
tion that they are made in a Mans last moments when he hats
not opportunity for good advice but we are not for this reason
to make any construction that cannot be fairly collected from
the words of the Will
When a Man gives all his Lands & Goods to his Children &
sayes no more It is reasonable enough to suppose he intends
them a fee in the Lands but as there are no words to manifest
that intention they can take only an Estate for life And the
Devise here is no more in effect It is true the word Heirs is
not necessary to carry a fee as it is in a Deed but there must be
some words as forever the word Assigns or the like to shew
more than an Estate for life was intended In this Case the
Devise is only to the Children to be equally divided And as
those words do not enlarge the Estate there are no other words
that can
I will mention one Case more where we have the words all &
the words equally to be divided And yet the Devisees were
Adj'd to have only an Estate for life. It is
Pettywood & Coke Cro. El. 53. 1. Leon. 129. 193. & 3. Lev.
180. s. c. which was thus a man seised of 3 Messes & having a
wife & 3 Children Rob*t Christian & Joan devised all his Messes
to his wife for life Rem'r of one to Rob't & his Heirs of another
to Christian & her Heirs & of the third to Joan & her heirs.
And if any of them die without issue Then the other surviving
shall have totam illam partem All that part betw. them to be
equally divided
B136 VIRGINIA COLONIAL DECISIONS
Robt. died without issue Joan survived And it was held that
she had only an Estate for life in Rob'ts part notwithstanding
the words All & equally to be divided
I shall conclude with a known rule of Law that the Heir is to
be favoured & especially in doubtful Cases We claim under the
Heir The Case at best is but doubtful whether the tes'tor
intended a fee to his Children And therefore I hope the Court
will not disinherit the Heir whom the Ancestor is always pre-
sumed to favour without a manifest intention appearing to the
contrary
Judgm't affirmed viz that the Sons took a Fee
Vid Mercers Notes where Francis fr Appellee cited sev'l Cases.
[126] Nelson vs. Seayres
Case & declares that one Edw. Seayres deced. the Defts. fa*r
being indebted to the Pit. in ;^.220. St. & ;^17 . . 12 . . 2 Cur.
the Deft on the 10. Apr. 1733. in cons, that the Pit. would trust
the Defts. fa*r for more money & Goods promised to pay not
only the said ;^220 St. & ;f 17 . . 12 . . 2. Cur. but all other Sums
the Defts. father should afterwards become indebted (in case
his fa'r did not pay the same) when he the Deft, should be
thereunto required And avers that trusting to this promise
betw. the said 10. April & last of Jan'y he lent Money & sold
Goods to Defts. fa'ramount'g to ;f .112 . . 17. St. & ;f316 . . 16 . .
6. Cur. besides the money he was before indebted & that Edw.
Seayres in his life time did not pay ;^221-16-4. part of the said
money of which the Pit. gave notice to the Deft. May 1. 1737.
The Deft, has pleaded the Act of Lim viz that the cause of
Action did not arise within 5 years The Pit. has replied that
it did
It is certainly more than five years since the promise was
made but the Cause of Action did not aiise on the promise
The Deft, did not undertake to pay at all events but only if his
fa'r did not of which he must have notice & a request be made
to him before he could be liable
The Cause of Action here could not arise till notice & request
for the Deft, could not know that his fa'r had not paid till such
notice & request And I think it must be agreed that if Pit. had
not alledged notice & request in his Decl. he could not have
maintained this Action
Notice is always necessary where the matter lies in the breast
BARRADALL'S REPORTS B137
of the Pit. & not of the Deft. And if notice & request are
necessary to support the Pits. Action the consequence is plain
that he could have no cause of Action till such Notice & request
The Defts. undertaking in this Case is a special one To pay
if his father did not The Pit. could not have brought an
Action on this promise immediately nor till there was a failure
by the faV The promise is what we call executory Some-
thing future is to happen or be done before any Cause of Action
can arise
If a man promises for a val. cons, to pay a Sum of Money in
case A & B are married Here the Cause of Action cannot arise
till the Marr. And tho* the marr. be 20 yrs. after the promise
the Action will lie
The Son in this Case gives the fa'r a genl Cred't he becomes
his Security to pay for all Goods & money the fa'r shall take or
[127] receive of the Pit. No time limited when the Goods or
Money shall be received Upon the faith of this promise there
are dealings for 2. or 3. yrs. Surely in any view it must be
allowed that the cause of Action did not arise till the end of the
dealings And we have sued within 3. yrs. from that time
It is a rule that the Stat, can be no bar till the Pits, cause of
Action is compleat
The dog of A. killed some of B. sheep A. promised in case
B. would not sue him for the Sheep to make him a recompence
upon request Several yrs. after B. did request & A. refused to
pay Upon which B. brought an Action A. pleaded the Act
of Lim. it being more than 6 yrs. since the promise But held
not good for the cause of Action did not arise till the request
Shutford vs. Borough Godb. 437. adjd. And there sayed If a
promise is made to pay ;^10. when a man marr. or comes from
Rome tho* his marr. or return be 10 yrs. after he may have his
Action for the Cause of Action is not compleat nor does arise
till the Marr. or return
Assumpsit in cons, that the Pit. had d'd a Deed to the Deft,
he promised to redeliver it upon request & alledges a request.
Deft, pleaded he did not promise within 6 yrs. & upon Dem.
plea held ill because Action did not arise on the prom but on the
request 1. Lev. 48. Webb vs, Martin.
Assumpsit in cons, that the Pit. at Defts. request would
receive A & B. into his House as Guests & Diet them the Deft,
promised &c. The Deft, pleaded he did not assume within
B138 VIRGINIA COLONIAL DECISIONS
6 yrs. & upon Dem. held ill for it is not material when the prom
was made but when the cause of Action arose 2. Sal. 422. Gould
vs. Johnson
The Defts. Lawyer very well knew he could not plead Non
ass. & has pleaded very properly but this case shews that where
the duty arises on a cons, executory or future the Cause of
Action does not arise from the prom but from the performa of
what we call the meritorious cause
To apply the last Case the Action did not arise on the prom
but either from the delivery of the Goods or the request
If from either of these we have sued within time
In Trover the Cause of Action does not arise on the Trover
but from the Conversion And therefore if a Trover be before
6 yrs. & a Conversion afterw'ds And Action is brought within
6 yrs. after the Conversion the Stat, will not bar. Far. 99.
Wortley Montague ag'st Lord Sandwich.
This Case was Compromised
[128] OCTOBER COURT MDCCXLI.
Hill & Ux'r. Ex'x Clopton vs. Henry & Ux'r Adm'x Syme
Appeal
The Pit. declares upon an Ind. Ass. for £2. 2. 9. & 837 lbs. Tob'o
due by Intestate Syme to the Testator Clopton
The Deft, pleads that Clopton made his last Will & Test in
Writing & appointed Syme one of his Ex'ors which said Win
was proved as the Law directs to be the last Will of Clopton ill
the Court of New Kent by pretext & reason whereof the said
Syme was discharged of his said Debt And prays Judgment if
Action
They also plead nil debet & non Ass. infra 5 annos. Upon these
two last pleas there were issues & a Dem*r to the first
Upon arguing the Dem'r the County Court was of Opinion
that the plea was not sufficient to bar the Pits. Action And
upon the issues the Jury found for the Pits. £9. 2. SH dam's
The Defts. have Appealed
The only question here is whether the Defts. plea be a good
bar And I hope to shew it is not either for the matter or the
manner of it The matter of the Plea is shortly this. That
Pits, tes'tor made a Will & appointed Defts. Intest. one of his
BARRADALL'S REPORTS B139
Ex'ors And that the Will was proved to be the Will of the
Tes'tor in due form of Law.
It is insisted that this making the Intest. an Ex*or is a dis-
charge of the Debt.
It is a common doctrine that where the Debtee makes his
Debtor Ex'or the Debt is extinguished But this rule is liable
to several exceptions As 1. where the Ex'or dies before he proves ,
the Will 2. Where the Exor refuses before the Ordinary For
the rule of Law is founded on these reasons 1. that a man cannot
sue himself 2. that the same hand being both to receive & pay
it amounts to an Extinguishm*t Which reasons do not hold
where the Ex'or dies before he prooves the Will or where he
refuses
The making the Debtor Ex*or amounts to paiment & a release
but if the Debtor will not accept the Ex'orship it can have no
operation for You cant force a man to accept a Rel. ag'st his
Will per Holt Sal. 307.
Here it does not appear that Syme proved the Will or ever
Administered the fact must be taken as it stands upon the
pleadings It is only sayed that Syme was appointed an Ex'or
& that the will was proved in due form but it is not sayed that
Syme proved it. A Will may be proved per testes & yet the
Ex'or refuse If Syme did not prove the Will he was not the
person intitled to receive & so falls not within the reason of the
rule of a Debtee making his Debtor Ex'or amounting to a
Rel.
[129] Obj. But here Syme was only an Ex'or with others
And tho' it be not pleaded that the other Ex'or proved the Will
it appears sufficiently by the Record the Pit. suing as Ex'trix.
And where the Debtor & others are made Ex'ors & the other
Ex'or proves the Will but the Debtor does not the Debt is extin-
guished So it is if the Debtor refuse & die before the other
Ex'ors for he might come in notwithstanding this refusal
All which must be admitted And if it appeared to the Court
that the Will proved by the Pit. & the Will mentioned in the
Plea wherein Svme was appointed Ex'or were the same the
Argum't would be conclusive but I conceive it does not
This Case as I have sayed must be taken as it stands upon
the pleadings The Plea is no more than that Clopton made a
Will & Syme one of his Ex'ors & that that Will was proved
Now it will scarse be denied but that a Man may have two
B140 VIRGINIA COLONIAL 'DECISIONS
Wills & several Ex'ors Cur. Went. 12. Which appears by the
Case of Kitchen & Bassett 2. Sal. 592.
It is not pleaded that the Will wherein Syme was appointed
Ex'or was the same Wiil proved by the Pit. Or that it was
proved by any other of the Ex'ors And if the Will was not proved
by any other of the Ex'ors It is no Rel. or extingtiishm't
When men will make use of such extraord'ry methods to avoid
the paim't of a just debt it can't be thought hard to hold them
to the greatest strictness in pleading Here the Deft should
have craved Oyer of the Probate & then have pleaded that
Syme & the Pit. were both maide Ex'ors And then the matter
would have appeared clearly & judicially to the Court
It is possible there might be two Wills The fact cannot now
be enquired into but Your Honours will judge upon the plead-
ings
It shews an extraordinary temper of Utigiousness in the Deft,
to contest this matter for even tho' the debt should not be recov-
erable at Law Yet in Equity it will indisputably be subject to
Cred'rs or even Legatees in some cases Here there are Creditors
unsatisfied.
What is meant by the debts being extinguished is no more
than that an Action will not lie to recover for it is Assets in the
hands of the Ex'or & as such liable to the Tes'tors debts And
that is the reason Holt says it amounts to paiment & a rel.
The Case of Wankford & Wankford 1. Sal. 299. where all the
learning on this head is collected was no more than this The
Obligee made the Obligon Exor who Adm'rd part of the Tes'tors
Goods but never proved the Will & died The Action was
brought ag'st the Heir of the Obligor who pleaded this matter
And it was adjudged that [130] the debt was extinguished tho*
the Will was not proved because the Ex'or had Adm'rd & so
had put it out of his power to refuse
But here Syme never Administered.
Judgm't affirmed.
TiMSON vs. SCARBURG & Uxor
Sam'l Timson seised in fee of 800 a of Land called Vaulx Hall
Plantation by his Will Jan'ry 8. 1694. devises thus " I give to
my two Sons W'm & Sam'l all that tract of Land where I now
live comonly called Vaulx Hall Plantation to be equally
4 1
BARRADALL'S REPORTS B141
** divided between them Wm to have the Manner house &
** Plant, into his half & Sam'l the Plant whereon Robert Rick-
man now lives into his half to them & their Heirs forever but
if it shall please God either of them shall die before they come
of age or without issue lawfully begotten Then to the Survivor
of them & their Heirs forever.
Wm & Sam'l entered & were severally seised of their moieties
Wm lived till 21. & having issue 3 Sons Wm John & Sam*l &
being seised of the premes devised to him & also of 150 a of Land
adjoining which he had purchased (which said devised premes
& 150 a are the premes in queon) by his Will Aug't 18. 1716.
devised the premes in queon thus ** I give to my Son Wm my
** Dwelling house & part of my Land on Queens Creek (describ-
*' ing the boundaries) to him & his heirs lawfully begotten for-
*' ever Item I give to my Son John All the rest of my Land on
** Queens Creek to him & his heirs lawfully begotten forever
But if it should please God to take are [sic] or one of them
out of this World before they come of Age or have no Son
*' Then to the Surv'r of these two or his Eldest Son" Then he
devises other Lands to his Son Sam'l & then follows this Clause
** If neither Wm nor John leave no Son behind them then my
** Son Sam'l to have it all to his Heirs." Wm & John the Sons
& Devisees entered & were seised & then Sam'l their Brother
died without issue
W*m lived to be 21. but died without issue & by his Will 26.
April 1726, devised his part to his Brother John in tail male
And in the Conclusion of his Will there is this Clause. " Item I
** give the Remainder of my Estate Lands & Interest to my
** Bro'r John Timson & his Heirs forever"
John Timson lived to be 21. had issue a Son Wm & by his Will
[131] devised to the Defts. Wife for life This Will is not found
at large as the others are
Wm the Son of John died an Infant without issue The
Lessor is Sam'l the Son of Sam'l Timson the first tes'tor & is
his Heir at Law. He is also Heir at Law of Wm Timson the
fa'r & of his 3. Sons Wm John & Sam'l And so is the male heir
of the whole family
B142 VIRGIXIA COLONLVL DECISIONS
The pedigree stands thus
Saml Tiinson
Wm John Saml Mary
\ dead sans
* \
Wm John Saml
died in dead sams
1726 issue
5a9f5 issue
WiHiam
dead iOMS issue
In this Case there must of necessity be two queons made
One upon the Will of Saml Timson which respects the Moiety
of Vaulx Hall plant, viz. 400 a of the premes in question And
the other upon the Will of W'm Timson his Son which may
either respect the whole premes or only the 150 a purchased by
W'm Timson as the determination happens to be upon Sam'l
Timsons Will
The first question then is upon Saml Timson's Will What
Estate his Sons Wm. & Saml take in the Lands called Vaulx
Hall Plant, devised to them The devise is to this purpose
'* I give to my 2 Sons W'm & Saml Vaulx Hall Plant to them &
** their Heirs forever but if it shall plaese God either of them should
die before they come of Age or without issue lawfully begotten
Then to the Surv'r of them & their Heirs forever."
The question is Whether W*m & Saml took an Estate tail
or a fee simple upon the Contingency of living till 21. or having
issue If an Estate tail W'm is dead without issue & Saml who
survived is the Lessor & has undoubtedly a good title If a
contingent fee then the Lessor can have no title under this Will
I shall be very short in speaking to this question because this
Court very lately in April 1739. upon the same words as are in
this Devise in another Clause of the same Will adjd. that such
words make an Estate tail I was then on the other side of the
question & laboured to persuade your Honours to be of Opin.
that it was a contingent fee but in vain Whether the Gent on
the other side may succeed better I can't tell
The Case in which this Opin. was given was betw. the
now Lessor (a) Timson & Robertson. It was upon a Devise
(a) See the Case ante 81.
in the Will of Saml Timson in these words " I give &
** bequeath to my Son John 200 a of Land to him & his heirs
'* forever but if it shall please God he shall die under Age
BARRADALL'S REPORTS B143
" or without issue then to my dauter Mary & her [132] heirs**
John lived till 21. but died without issue The Lessor claimed
as heir of John & if John had taken a contingent fee by the
Devise would have had a good title but it was adj*d to be an
Estate tail And so Mary the dauter had a good Title By the
Rem*r over
In the present Devise the words ** to my Sons W*m & Sam'l &
** their heirs but if either of them die before they come of age
** or without issue Then to the Surv'r & their heirs." There is
no difference betw. the words of one Devise & the other only in
one it is if they die under Age & in the other if they die before
they come of Age which are the same in sence The Lessor
therefore hopes that the same words in the same Will will have
the same construction now they make for his title as they were
adj'd to have when they made ag'st his title
The words that we rely upon to make an Estate tail are ** if
either die before they come of age or without issue This word
issue in a Will is always taken to mean heirs of the body And
when ever it can be applied to the word heirs in any former part
of the Will qualifies the generality of the term heirs & restrains
it to Heirs of the body It is a common & known doctrine that
if a devise be to one & his heirs & if he die with't issue Rem'r
over that tho* the first words made a fee Yet the word issue that
comes after shews that the testor did not intend heirs general
in the first part of the Devise but only heirs of the body And so
taking the testers meaning upon the whole Will it is plain an
Estate tail was intended Here the Devise is to W'm & Sam*l &
their heirs & if either die before they come of Age or with*t issue
Rem*r over The word issue shews what heirs were meant
in the first part of the Devise viz. heirs of the body. And your
Honors have adj*d that the words before they come of Age do
not differ the case from a general devise of the kind
In Timson & Robertson the Case principally relied upon was
Soul & Gerrard Cro. El. 525. which was thus A man devised
to his Son & his heirs & if he die within age or without issue
Rem*r over This was adjudged an Estate tail And it is to be
sure a Case directly in point
There is also a later Case Tilly & Collier 2. Lev. 162. where the
devise as to this purpose was shortly thus The Devisor had 3
dauters Susan Ann & Eliza. & devised his Lands to his wife till
his heir came of Age. And if Susan his heir die without heirs
B144 VIRGINIA COLONIAL DECISIONS
before 21. so that the Land fall to Ann Then he devises further
These words ** If Susan die without heirs before 21/' it was held
made an Estate tail in her & not a fee
[133] And so I shall leave this point hoping my Client will
not be so unfortunate to have the same point adj'd ag'st him
both ways
The next queon in this Case is What Estate W*m & John the
Sons of W'm Timson took by the devise to them in their fa'rs
Will and this question is necessary with respect to the 150 a
which W'm Timson the fa'r purchased & which he has devised
with his moiety of Vaulx Hall Plant, to his Sons Altho' he had
only an Estate tail in Vaulx's And if he had a fee in Vaulx's Then
this queon respects the whole premes as has been sayed
The devise in this W'm Timsons Will is thus ** I give to my
* Son W'm part of my Land at Queens Creek to him & his heirs
' lawfully begotten forever I give to my Son John all the rest
* of my Land at Queens Creek to him & his heirs lawfully be-
* gotten forever But if it should please God to take are or one
* of them out of this World before they come to Age or have
* no Son" Then he devises lands to his Son Sam'l & adds If
* neither W'm or John leave no Son behind them then my Son
* Sam'l to have it all to his heirs"
Nothing can be clearer I think than that the testor intended
the fee should rest in his Son Sam'l for tho' the first devise to
W'm & John is to them and their Heirs Yet it is with the
addition of those words lawfully begotten which in comon
Speech are generally understood of heirs of the body Yet ad-
mitting a fee simple would pass by these words Upon what
follows there can be no doubt what heirs the testor meant in
this part of the devise " If either die before they come to Age
** or have no Son Then to the Surv'r or his eldest Son " The heirs
meant are plainly the Sons of the Devisees or their heirs male
for they are the same & not their heirs general
The words here are the same as in Sam'l Timsons Will Only
Son instead of issue And the word Son is as much descriptive
of heirs male as the word issue is of heirs of the body in general.
If therefore the words in Sam'l Timsons Will make an Estate
tail general The words here will make an Estate in tail male
But if there could arise a doubt on this part of the Will on
account of the words before they come of Age Yet the last Clause
seems to put the matter beyond all queon ** If neither W'm or
BARRADALL^S REPORTS B145
Jn'o leave no Son behind them then my Son Sam*l to have it
all to his heirs The Rem'r to Sam'l is to take place when Wm &
John are dead without Sons that is with't issue male
It will scarce be disputed that if a man devises to one & his
heirs And if he leaves no Son RemV over that the Devisee has
an Estate in tail male And that in effect is the devise here Son
does certainly as strongly import heirs male as Issue does heir
of the body in general
[134] In Bilfields Case cited by Hale in King & MeUing 1.
Vent. 231. the Devise was to A. & if he dies not having a Son
then to remain to the heirs of the testor And adj'd that Son was
nomen collectivum & that it was an intail
So in Milliner & Robinson Mo. 682 One devised to his Brother
John & if he died having no Son then to his Bro'r Wm for life
And if he died without issue having no Son Rem'r over It was
held that John the first Devisee had an Estate tail
[Note by W. G.) As to these two cases see 9 Gratt. 222-232. Arg. (pear me)
in Moore vs. Stones Ex's.
This Case is also in 1 Ro. Abr. 837. 12. but there the Devise is
stated to be to the Wife for life & afterwds to the Son And if
the Son dies without issue having no Son that another shall have
it Held an Estate in tail male to the Son
But there can scarce want Cases to support so plain a point
for what can a man mean by the word Son but heirs male &
what are heirs male but Sons
So that I apprehend it to be extreamly clear that the testor
Wm Timson intended only an Estate in tail male to his Sons
W'm & John And that upon default of male heirs the Land
sho*d go to his Son Sam'l in fee W'm & John are both dead with-
out issue Sam*l is also dead & the Lessor is his heir.
Thus upon the Will of Sam'l Timson the Lessor seems to have
a good title to Vaulx's Plant. But if that could be a doubt upon
the Will of W'm Timson he has clearly a title not only to that
but to the 150 a purchased by W'm Timson And so has a good
title to the whole premes in question
And if W'm & John the Sons of W'm had only an Estate tail
it may seem unnecessary to take any notice of their Wills W'm
has taken upon him to devise his part to his Bro'r John in tail &
John has taken upon him to devise the whole to the Defts.
Wife but these Devises must be void if they had only Estates
tail as I apprehend is extreamly clear
B146 VIRGINIA COLONIAL DECISIONS
Obj. Admitting that W'm & John the Sons of W*m Timson
took only an Estate tail & that Sam*l had a Rem'r in fee This
Rem r was vested in him & so upon his death descended to his
heir who was his Bro'r W'm And W'm by his Will has devised
this Rem'r to his Bro'r John by these Words ** I give the Rem'r
** of my Estate Lands & Interest to my Brother John & his
** heirs " Then John being tenant in tail with the Rem'r in fee
expectant might devise to the Deft.
Answr. I shall not dispute but that the Rem'r limited to
Sam'l upon his death descended to his Bro'r W'm And I shall
agree that W'm might devise this Rem'r & that it wou'd pass
by [135] by the devise alone But as John the Devisee was heir
of his Bro'r W'm he must take this Rem'r by descent & not by
the devise
It is not indeed material how John took this Rem'r I agree
that he was tenant in tail with the Rem'r in fee expectant And
that he might have devised this Rem'r but this I conceive he
has not done And therefore the same is descended upon the
Lessor who is his heir
I have already observed that John Timsons Will is not found
at large or referred to in the Case And therefore it must be taken
to be as Stated & agreed to in the Case
The words of the Case are that he made his Will & thereby
devised the premes in queon to the Deft. Anna Maria for life
It is agreed that he left a Son at his death who is since dead
(but the Will I believe was made before he had a Son) The queon
then is whether tenant in tail with the Rem'r in fee expectant
having issue can devise in this manner.
The intent of the testor is to be considered By the devise as
here stated he certainly intended to pass a present interest but
that he could not do having issue at his death The Devise
therefore is void
Vid. 1. Sal. 233. 1 Raym'd 523. Badger & Loyd.
The Act of the 9. Ann. Says No Estates tail shall be cut off,
avoided or defeated by any ways or means whatsoever but by
Act of Assembly And every act and thing done towards cutting
off, avoiding or defeating any Estate tail is thereby declared
to be null & void
But this devise would have avoided & defeated the Estate
tail as there was issue at the testors death Therefore it is void
BARRADALUS REPORTS B147
A Devise void in its creation cannot be made good by matter
ex post facto As if an Infant makes a Will & lives to be of Age
but dies without a new publication the Will is void So of a ferns
covert if she does not republish after discoverture
Further tho' a Rem'r in fee may be devised Yet there must be
apt words to pass it The testors intention to pass such an
interest must appear Here the intention appears quite other-
wise The Devise as stated is of the premes in queon & to pass
in presenti This can never be construed a Devise of a Rem*r
expectant & to take effect in future As it must be to make the
Devise good because it was certainly void ag'st the Devisors
issue
But this question only respects the 150 a purchased by W'm
Timson if the Devise in Sam*l Timsons Will be an Estate tail
Judgmt. Fr Pit.
N. B. The Council for the Deft, only argued the first point
which being adj'd ag*st the Deft, he would not argue the second
The Obj. above was not mentioned
[136] Tazewell & Ux'r vs. Harmanson
In Ejectm't for 400 a of Land Upon the facts agreed the
Case is
W'm Andrews seised in fee of 1000 a granted by Pat to one
Taylor by Deed poll dated in 1664 for divers valuable cons's
(but none particularly expressed) demises leases & to farm lets
the said premes to Tho's Harmonson for his and his wifes life
And after their decease he gives grants enfeoffs & confirms the
said Land to four Sons of Harmonson as follows to Thos. 300 a.
to W'm 250 a. to John 250 a. & to Henry 200 a. And if old
Harmonson & his wife decease before the Sons come of Age it
shall be lawful for them at the age of 21. to enter upon their
parts The same to have enjoy & possess as their own proper &
real Estates in fee Simple to them & their heirs lawfully begotten
of their several & respective bodies forever
This is the substance of the Deed It is recorded but no livery
appears to be made
Tho's Harmanson the fa'r enters & in 1667. obtained a pat
for 800 a as Surplus Land within the bounds of the said Pat.
to Taylor To hold to him & his heirs
After which he caused a Division of the 1000 a to be made
B148 VIRGINIA COLONIAL DECISIONS
among his four Sons according to the proportions given them
by the Deed And being seised both of the 1000 & 800 a by his
WiU dated in 1696 he devises thus ** I confirm to my four eldest
** Sons the several Dividends of Land by me given to them &
their heirs forever as the same was divided by Mr. Dan*l Ejrre
** which they have passed Bonds to each other to be content with
** under the penalties & according to the Conditions there
incerted."
And in another Clause he devises to the said Sons in fee **A11
** the remaining part of his Dividend which lies at the head of
** the Land given them & was not divided with the rest to con-
** tain their several Divisional lines as they now run to the head
line &c.
The Lands mentioned in the first devise are the 1000 a Those
mentioned in the second devise are the 800 a.
Tho*s Harmanson died Henry one of the Sons entered into
200 a parcel of the 1000 a Allotted him by the Division & devised
to him as aforesaid & into other 200 a contiguous parcel of the
said 800 a. Which said 400 a. are the premes in queon
Henry Harmanson by his Will dated in 1709. devises the said
premes (by the name of his Dwelling Plant.) to his wife for life
After her death to the Child she the went with (if a
[Note by W. W. S. — There is a skip in the pagination in the book itself; copy
is followed.]
[141] some thing as the Son He is willing they sho'd have their
brothers Estate but if he won't consent to it Then he has pro-
vided an equivalent viz. The Estate he had given to his Son
This is the constc. we contend for the Son would not make
over his own Estate Therefore we say we are intitled to the
equivalent But the Son says he will have his own Estate &
the other too I must submit whether this can be reasonably
thought the tes'tors meaning It is no obj. to say the Estate
given the Son was only in Rem'r And that it was unreasonable
he sho'd make over his Estate upon so remote an expectancy.
The business is whether the testor has ordered it so If he has
it must be submitted to It was certainly in the Sons election
whether he would accept of this Rem'r upon the terms it was
given And if he did not think it worth his while Ought he now
because in event the Rem'r is come to take Place set up a title
discharg'd of the terms or condition upon which it was given
Such reasoning has more of amusement than Argument It
BARRADALL'S REPORTS B149
was I conceive as much the testers intention that his dauters
sho'd have Johnsons Plant*n or as an equivalent an Estate in
Rem'r in the dwell'g Plant'n as it was that the son sh'd have
any estates in the dwell'g plantation If the Son will not let us
have Johnsons Plant, how can this intent be satisfied unless we
have the dwelVg Plant'n
Then nothing can be stronger to shew the testors intent that
the Son sho'd have nothing in the dwelling Plant'n if he did
not perform the Cond'n He not only limits it over to the dauter
but adds ** My Son to have no part or parcel of my Estate"
He intended to oblige him under the penalty of losing all to
make over the Land to his Sisters And since he has not done
so What pretence of right can he have
It is no uncomon thing in Wills to construe the the Copulative
(and) as the Desjunctive (Or) And so vice versa where such
construction will best support the tes'tors meaning There are
many Cases in the Books to this purpose
1 Sho. 322. sev'l Cases put of Gov't so constr. Saul & Gerrard Cro. El.
Now here in this proviso if the first Copulative (And) is read
(Or) the Case will admit of no dispute for then it will run thus
If the Child be a dauter Or if my Son should enjoy the dwell'g
Plant'n there could not then possibly be a doubt but that if the
Son by any Event came to enjoy the dwell'g Plant'n It sho'd
go over if he did not make over the Land to his Sisters And as
that from other Parts of the Will may be reasonably collected
to be the tes'tors meaning I must submit whether it be
any forced interpretation to construe (And) here as a
Disjunctive
Pol. 649. Price & Hunt.
This may appear the more reasonable upon this cons, that
those words " If my Son sho'd enjoy the dwelling Plant'n &c."
are no ways necessary but the sence & meaning of the tes'tor
would be compleat without them Unless they were intended
for the purpose we contend
The Sentence would run thus with't those words *' If the
*' Child be a dauter And my Son sho'd not make over &c.'*
then I give the dwell'g Plant'n to my Dauters.
[142] If the Child had been a dauter the Son would have enjoied
the dwell'g Plant'n as the next in Rem'r The other words then
** or if my Son sho'd enjoy &c." were not necessary unless it
B150 VIRGINIA COLONIAL DECISIONS
was to signify that if his Son by any event came to the dweU'g
Plant'n it sho'd go over if he did not perform the Cond'n
If then it was the Testors intention that the Son sho*d have no
Estate in the dwell'g Plant'n unless he made over the Land to
his Sisters which he has not done. It will scarce be a queon I
believe but the Lessor has a good title The Case will be then
no more than this
Devise to A. for life Rem'r to B. in tail Rem'r to C. in tail
upon condition that he do such an Act And if he fails then to D.
It cannot be doubted I think but that this Devise to D. is
good by way of contingent Rem'r. It is a Rem'r to take effect
upon this contingency in case the Son disturbed or did not make
over the Land to the dauters But altho' this Rem'r was contin-
gent in its creation Yet upon the Sons entring & aliening the
Land it became vested for then the Contingency happened upon
which it was to take effect And now the mesne Estates being
spent the psons in Rem'r have undoubtedly a good title
Such a lim after a fee simple would be good tho' not as a
Rem'r Yet as an Executory Devise as Fulmersons case cited
in Pell & Brown Cro. Ja. 592. which was shortly thus a Devise
to Sr. Edw. Cleer & his Wife & the heirs of Cleer upon Cond'n
that they sho'd convey lands to the Ex'ors And if they failed
their Estate sho'd cease & the Ex'ors should have the Land &c.
And it was held that this Lim tho' after a fee was good by way
of Executory Devise
Here the lim is after an Estate tail upon which a Rem'r may
be limited And therefore it is good by way of contingent Rem'r
Such a Rem'r is contrary to no rule of Law and when a man has
a fee simple He has such an absolute power & dominion over
his Estate that he may give it in any manner & under what
Conditions restrictions & Lim he pleases so his disposition do
not clash with the rules of Law And so I pray Judgm't for the
Pit.
Vide 2 Mercer. 44.
This Case was compromised.
Anderson & Ux'r vs. Ligan.
Tho's Ligan seised in fee of 200 a. of Land the moiety of
which are the premes in queon & having issue 4 Sons W'm the
eldest Rich'd his second & two others by his Will 10. Jan'ry
BARRADALLS REPORTS B151
1675. devises the same to his Son W*m ** But in case [143] my
** Son W'm die without Heirs Then my Land above expressed
"to return to my Son Richard or the next surviving Son."
Wm entered & was seised & had issue Thos. his eldest Son &
Wm & by his Will 21. Jan'ry 1688 devised the said premes to
his Sons Tho's & W'm in fee to be equally divided betw. them &
died in 1689.
After his death his Widow occupied the whole till his Sons
came of Age who respectively as they attained to 21. entered
into the said land but made no division
Tho's the Son of W'm died in 1705. left issue a Son & 3 daugh-
ters Phoebe Mary & Eliz'a The Son died an Infant in 1706.
Mary is dead with't issue Eliz'a is one of the Lessors was bom
in 1701. & married the other Lessor in 1718.
Eliz'a & Phoebe or those claiming under them have been in
quiet possion of part of the said 200 a. viz. 100 a. from the death
of their Bro*r in 1706. And the Deft, who is William the Son
of W'm from the Time of his Entry has been in possion of the
rest but the Land in his possion has never been separated or
divided from the other The Deft, is 59 y'rs old
Phoebe who married one Welthall with her said husband by
deed 6. March 1720. conveied all her right to sd land by esti-
mation 82 a. to Alex'a Marshall
The Lessors by Lease & Rel. 1 & 2. Jan'ry 1723. conveied
to s'd Marshall 80 a. parcel of s'd land by the name of one third
part of 247. a.
But Marshall by deeds dated 6. March 1737. conveied back to
Welthall & his wife & the Lessors all his title claim & interest
to the land so conveied to him
The first queon is Whether the Devise in Tho's Ligans Will
to his Son W'm be an Estate tail or a Fee If an Estate tail the
Lessor Eliz'a is one of the Coheirs in tail viz. one of the dauters
of Tho's who was eldest Son of W'm the first devisee And so
she must have a clear title unless she is bar'd by the Act of Lim
which must be the 2d queon & indeed the only one in this Case
As to the Conv. by the Lessor to Marshall It is void by the
Act of 1710. Eliz'a being only Ten't in tail
But if not Marshall has reconveied, & so Eliz'a is remitted
to her first Estate And 1. I think it can scarce be disputed but
that W'm Ligan the Son of Tho's took an Estate tail by the
Devise in Tho's Ligans Will
B152 VIRGINIA COLONIAL DECISIONS
By the first part of the Devise no Estate is limited but by
what follows ** In case my Son die with*t heirs then to Rich'd."
W'm has an Estate of Inheritance by implication But the
queon is whether a fee or tail
The word heirs in a Will is often taken respectively that is to
say for heirs special & not heirs gen'l where the tes'tors inten-
tion appears to be so
Now when a man devises to one & his heirs & if he die with*t
heirs Rem*r over to another who is heir gen'l of the first Devisee,
It is plain he cannot mean the heirs gen*l of the first Devisee
because then the lim over would be idle & vain for the heir
gen'l would take it by course of Law if the Devisee left no
Children
[144] The Tes'tor then in such case must mean heirs of the
body And so such a Devise by tHe apparent meaning & intent
of the testor makes an Estate tail.
And so it has been adj'd in sev'l instances as
Webb & Herring 1. R. Abr. 836. 5. 3. Bui. 192. Devise to his
Son Francis after the death of his Wife. And if his 3. dauters
outlive their Mother & Francis & his heirs Then to them for
life. Heirs here was held to be meant heirs of the body of
Francis the dauters being his heirs gen'l & so Francis had an
Estate tail
Braxton & Stone 3. Mod. 123. A man having 2. Sons devises
to the eldest & if he die without heirs male Rem'r to the other
Adj'd an Estate- tail in the Eldest
Nottingham & Jennings 1. Sal. 223. One having 3. Sons
devises to the 2d & his heirs forever & for want of such heirs
to his own right Heirs Adj'd the Testor must intend heirs of his
body because the Son could not diewith't heirs gen'l living heirs
of the fa'r & so an Estate tail in the 2d Son
See also the Cases in 3. Danv. 180. & No. 6. ibid.
Here the Rem'r limited upon W'ms d)ring with't heirs is to
his Bro'r Rich'd who was his heir gen'l And so clearly an Estate
tail
If this was an Estate tail in W'm the Pit. is Grandauter &
one of the Coheirs in tail & so has a good title unless barr'd by
the Act of Lim which is The 2d queon & in truth the only
point in the case W'm the tenant in tail takes upon him to
devise to his two Sons Tho's & W'm in fee
After his death his wife occupied the whole till the Sons
BARRADALUS REPORTS B153
came of Age & then they respectively entered but never made
any division Tho's the eldest Son died in 1705. left Issue a
Son & 3 dauters The Son died in 1706. with't issue & one of the
dauters Mary is dead with*t issue
The Lessor Eliz'a is another of the d?iuters was bom in 1701 &
married in 1718 to the other Lessor
The Deft, who is W'm the Son of Tho's has been inpossion of
that Part of the 200 a. in dispute 38 years viz. from his Entry
after he came of Age
1. I say we are within the saving Clause of the Act of 1710.
Or 2d if not we have been in possion as well as the Deft, no
division or separation And so the Act of Lim can't run ag'st
us
The Act of 1710 gives a right of Entry to persons then having
a Right So that they enter within 20 yrs. from the time the
right first accrued
And there is a proviso or saving Clause that if pr-sons [145] then
having such right of Entry are under the disability of Non age
Coverture &c. that they may Enter within 10 yrs after the dis-
ability removed
When this Act was made the Lessor Eliz'a & her Sister Phoebe
had a right of Entry as issue in tail of their father This right
first accrued to them upon the death of their Brother in 1706
And so by the enacting part they ought to have entered within
20 yrs from that time viz. in 1726
But the Lessor Eliz'a was under Age when the Act was made
& she married under age & has continued under Coverture ever
since
The queon then is whether her right is not saved to her
Had she lived to be of age & then married I agree she must
have been barr'd because the disabihty then would have been
removed & she in a capacity to exert her right
But here before the first disability removed she falls under
another equally within the saving Clause We contend then
that by the Equity & Intendment of this Clause our right is
preserved to Us
Suppose we had become Non compos before our full age.
Surely we sho'd not be barr'd if we sued within time after
recovery Why sho'd we then in this Case
We hope it will be the Courts Opinion that we are within the
Equity & Intendment of the Proviso
B154 VIRGINIA COLONIAL DECISIONS
But if not we say 2. The Act of Lim cannot run ag'st us at
all as this Case is circumstanced.
The Defts. Title is under a Devise of W'm the Ten't in tail his
fa'r & our G'dfa'r. This Devise must be agreed to be void And
so the Deft, had no right of Entry-
It is found that our fa'r & the Deft, entered respectively as
they came of Age but never made any division That the Lessor
& her Sister & those claiming under them have been in quiet
possession of part viz. 100 a. ever since their Bro'rs death in
1706 & the Deft, has been in possion of the rest but his part was
never separated or divided from the other
Now by the Will of Wm. under which the Deft, claims no
particular Part is given to him but the whole to be equally
divided betw. the Lessors fa'r & him It can't therefore be
say'd that under that devise he had a right to one part more
than another And the possion both of Lessor & Deft, has con-
tinued an undivided possion to this Day.
Now the rule of Law is Where two are in possion One that
has right & another that has not the Law will adjudge the possion
to be in him that has right Lit'l 701. Plowd. 233. b. s. p. 1. Sid.
385 s. p.
Here is an undivided Possion both in Lessor & Deft. And as
the Deft, entered with't any title it is exactly the Case put by
Littleton
If then the Law adjudges the possion in Us the Act of Lim
cannot run ag'st us
[146] The Lessors are not above 7 or 8 jrrs out of time from
her full age She was not of Age till 1722 & had 10 yrs after viz.
till 1732.
Here an Estate tail is to be defeated by possion And the Issue
in tail under disability
Judgem't Fr. Deft, by the Opinion of
Lee Tayloe
Custis Lightfoot
Grymes Digges Con.
Robinson
Byrd & the
Governor
Vide Needlers Argument page 33. [Not in same handwriting.]
BARRADALL*S REPORTS B155
CoRBiN vs Chew*s Adm'rs.
Debt upon bond And on Plene administravit pleaded two
questions were made 1. Whether an Exec'r might retain for
his own debt by simple contract ag't a Bond CredY. 2. Whether
Judgm't upon simple contracts obtained since the Action bro't
on the Bond may be pleaded or given in Evidence on Plene
administravit ag't this Bond debt, for as to such Judgmt*s or
paiment of simple Contract-debts before Notice (by Action) of
the Bond there can be no question but they may be pleaded
ag't the Bond-debts Vid 1. Mod. 175. 3. Mod. 115. 1. Vent. 199.
2. Saund. 49. Vaugh. 94. 3. Lev. 113. FitzG. 77. 78. 2. And.
As to the 1. for the Deft, it was argued that an Ex'r may
retain for his Debt by Simple Contract ag't a Bond Cred'r
It is a gen'l Rule that an Ex'r may retain for his own debt
Wentw. Off. of Ex'r c. 12. tit. Debts by Specialty says this is
to be understood where the Ex'r is of equal Dignity with the
Cred'rs And puts a Case If the Testor be indebted to other
Men by Judgm't Recognisance or Statute and to the Ex'r only
by Specialty the Ex'r cannot prefer himself Which is true in
the Case put But this proves not the Point in question w'ch is
where the Ex'rs debt is by Simple Contract & the Cred'rs by
Bond And there is a great difference between the Cases : For
Ex'rs are bound to take notice of Judgments but not of Bonds
as I shall shew presently. Wentworth's Opinion then is nothing
to the Point And I will [147] confess I can find no judicial resolu-
tion in the Books the solution of it must therefore depend upon
the reason & nature of the thing From whence I take it to be
clear y't the Ex'r may retain
The Authoritys are numberless that an Ex'r may pay a debt
by simple Contract without Action before a debt by Specialty
whereof he had no Notice Vid supra And this Notice must be
by Action too 1. Mod. 175. Wentw. 144. If then he can pay a
Cred'r it would be very hard & unreasonable if he cannot pay
himself This would be to put him in a worse Condition than
another Cred'r in the same circumstance and deprive him of
the power of doing as much for himself as for a stranger w'ch is
ag't Sense & Reason as well as ag't a rule of Law In cBquali jure
melior est conditio possidentis which by such means would be
really inverted And the Ex'rs possess on would put him in a
worse State viz. out of a possibility of obtaining a debt by Simple
B156 VIRGINIA COLONIAL DECISIONS
Contract before a debt due to another by Bond w'ch he might
do if he was not Ex'r And as the only way he can pay himself is
by retaining Doubtless he may well do it
I take the Law to be likewise clear that where a Suet is oom-
menced ag't an Ex'r on a Specialty & afterwards another is
bro't on a Simple Contract the ExV may lawfully confess this
last Action And the Judgm't be pleaded in bar to the Action on
the Specialty This I shall endeavour to prove presently If
the Law be so which I shall suppose at present Is it not absurd
to imagine an Ex'r has Power to prefer a Stranger but not him-
self And therefore as he cannot have remedy by Action (for he
cannot sue himself) the Law undoubtedly will give him an ade-
quate remedy viz. a power to retain Otherwise his Extorship puts
him in a worse State than he would be without which the Law
could never intend (nor is there one Instance where the Law is
so) being ag't the rule I just now mentioned
I conceive it then to be clear both from the principles of the
Law as well from the reason & nature of the thing and I am
sure highly consistent with natural justice that an Ex'r by simple
contract may retain ag't a Bond Cred'r
2. Whether Judgm't obtained upon debts by simple contract
since the Action bro't by the Pit. on his bond may be pleaded
or given in Evidence ag't the Bond-debt
I will agree that to pay a debt by simple contract voluntarily
before a debt by Obligation whereof the Ex'r had Notice is a
Devastavit But I conceive it is not so to satisfie a Judgm't
obtained upon a Simple Contract before a debt by Obligation
And I take it to be a settled Point in Law that where an Action
is bro't ag't an Ex'r & pending that another is brought ag't him
he may lawfully confess this last Action & the Judg't shall be
a good bar to the first if there is no covin D. & Stud. 157. Wentw.
144. Mo. 678. Cro. El. 462. [148] And there is no difference where
the first Action is for a debt by Specialty & the Q. upon simple
contract, Keil. 74. is expressly in point And it is there sayed to
be clear Law that when a judgm't is given ag't Extors such
recovery is a good plea to all other Actions And 9. E. 4. 12.
Ex'rs are chargeable to him who first has Judgm't And no dis-
tinction made as to the debts Nor do I find that distinction taken
in any of the Cases upon this Subject. Vid. 1. Sid. 21.
And Vaugh. 95. Edgcomb & Dee is express in the point that
such Judgment upon simple contract tho' the Action was com-
BARRADALL'S REPORTS B157
menced after another Action brought upon a Specialty may
well be pleaded to the Action on the Specialty
The Law has left in the breast of the Ex'r to prefer one Cred'r
before another in many Cases as Charity or other equitable
motive may induce And an Ex'r in conscience ought not to
withstand or delay a Suit if he thinks the Debt just of what
nature soever it be There may & often is more Equity & Charity
to pay a Debt by simple Contract than one upon Bond
Besides a Judgment is the Act of the Court & compulsory &
binding upon the Ex'r And if it is no bar to other Actions he
must pay it out of his own pocket
The Cases that I suppose will be shewed on the other Side
will appear to be chiefly upon the point of paiment without
Judgm't of Debts by Simple Contract after Notice of Debts by
Specialty which undoubtedly the Ex'r ought not to do voluntarily
but there is no Case (I speak within the Compass of my own
Knowledge & Inquiry) where it is expressly resolved that a
Judgm't may not be paid tho' obtained after Action commenced
upon the Specialty And I take 9. E. 4. 12. Keil. 74. & Vaugh. 94.
to be affirmative Resolutions in the Point which I conceive are
more cogent & ought to be more regarded than 20 Cases which
prove nothing but by way of inference And an express Resolu-
tion ag't me I believe cannot be shewn. Post 223.
OCTOBER COURT MDCCXXXV.
Morris ag't Chamberlayne.
The Pit. declares upon an Indeb. Assumpsit for Money &
Tob'o had & reced to his Use Upon Non assumpsit pleaded the
Jury find a Special Verdict Upon which the Case appears
to be That the Pit. was Sherif of New Kent Anno 1733 & had
the [149] collection of the Quit rents Levies & Fees one Birch was
his Undersherif & paid him 5000. lbs. Tob'o for the profits of his
Office There was due from the Deft. 6. . 12 . . 4 for quit rents &
7737 lbs. Tob*o for County Levies & Officers Fees of his own &
other peoples that he had received Birch being indebted to the
Deft, more than that Money & Tob'o before the Year 1733
gives the Deft, receits for those Quitrents Levies &c. And
gives himself Credit in the Defts. Book for the same but no Mony
[sic] or Tob'o was paid Except by that Discount And the Deft.
B158 VIRGINIA COLONIAL DECISIONS
or Birch have not paid the Pit. any Part of that Money & Tob'o
If the Law befor the Pit. the Jury find 71-1-10 Dam'a
The Questions upon this Case I take to be two. 1. Whether
the Deft, is chargeable at all to the Pit. for the Quitrents &c.
discounted with Birch the Undersherif & for which he has his
Receits. 2. If he be, Whether the Pit. can maintain an Indeb.
assumpsit for the Quitrents &c. due from the Deft, himself
There is a Difference taken as to the Mony rec'd for Quitrents
& the Tob'o rec'd for Levies & Fees. The Quitrents are sayed
to be the Kings Treasure & coming to the Defts. Hands he is
answerable And so perhaps he would to the King if we were
in a dispute with the Crown for it must be owned the Law is
particularly careful to secure the Kings Debts. His Treasure is
looked upon as the Treasure of the Comonwealth which is pacts
vinculum et bellorum nervi And therefore he has sundry Preroga-
tives for obtaining them He can have Exon of Body Lands &
Goods at once A subject can have no Exon ag't the King's
Debtor without first securing the King's Debt (p 33. H. 8. c. 39.
if process for the King be comenced before Judgment) The
King shall have Remedy ag't the Debtor of his Debtor cunt
multis aliis If a Man intermeddle with the Kings Treasure
pretending Title he shall be answerable for it to the King 11.
Rep. 89. E. of Devonshire — Godb. 291. 292.
All this is true but nothing to the purpose the Question here
is not between the King & a Subject Nor ought the Money in
this Case as I conceive be regarded as the Kings Debts It seems
therefore foreign & absurd to talk of his Prerogative The Case
as to this Point is no more than this An Officer of the Crown
employs a person under him who receives the Kings Money &
pays it to a third Person The Officer sues this 3. Person for
Mony received to his Use How is the King concerned in all this
Will his Treasure be impaired if the Pit. should not recover How
then can this be regarded as his Debt Is the Pit. intitled to an
Exon ag't Body Lands & Goods Will he be preferred to another
Subject in the Point of Exon. Can the Pit. have Remedy ag't
the Debtor of the Deft. If I am answered in the Negative as
sure I must be it will be evident to a Demonstration this is not
the Kings Debt nor can be regarded as such if it was the Pit.
would have all these Privileges Therefore without entering
into the Dispute whether the Deft, would be answerable to the
King or not [150] which I conceive is nothing at all to this Case
BARRAD ALL'S REPORTS B159
I shall close this Point with an Observation of Sir M. Hale that
To make the Kings Prerogative a State to recover other Mens
Debts is unreasonable inconvenient & mischievous. Hard. 404.
This plausible Pretence of the Kings Debt being removed the
Case is in short this An Undersher who had farmed the Profits
of the Sher Office directs a Person to whom he is indebted to
receive divers Quitrents Levies & Fees And disco'ts them to-
gether with what this Person owed himself on the same Account
but of his own private Debt & gives Rect's The Undersher
proves insolvent the Sher is forced to pay the King & public
Officers And whether the Sher can recover ag't the Person who
reced these Quitrents by the Undersherifs Order is the Question
It is sayed if a Master send his Serv't to receive Mony & the
Serv't pays it again to the Person he received it of in discharge
of his own Debt this shall be taken as Mony reced to the Masters
Use And I agree that it will be so But then I think that is
nothing like the Case at Bar
The Undersherif here cannot be taken as a Serv*t He had
farmed the Office for a great Premium & so was not subject to
the Direction or Controul of the Sher who had delegated his
whole Power to him & therefore had no Right to intermeddle
in the Receits & Paiments but the Undersherif was surely to
manage that & everything else relating to his Office as he thought
most for his own Advantage & Benefit It is inconsistent in the
Nature of the Thing that the Sher should intermeddle for by
that Means he might deprive the Undersherif of all the Profits
which he paid so largely for
If the Sherif then had no Power to direct the Rec'ts & Pai-
ments or in any Manner to controul the Undersherif How can
the Undersherif be regarded as his Servant Or. how can Mony
reced by the Order of the Undersher be Mony reced to the Sherifs
Use
The Case therefore is not like that of the Master & Serv't
for there is an apparent Fraud & the Person receiving the Mony
knows very well it is the Masters & therefore it is reasonable he
should be answerable to the Master But in the Case at Bar I
conceive the Mony & Tob'o was in no sort the Sherifs nor subject
to his Disposal (tho* it be true that he is answerable to the King &
Public Cred'rs). He had fully authorised the Undersher to
receive & pay The Deft, transacted this Matter with the
Person so authorised & who alone had a Right to transact it
B160 VIRGINIA COLONIAL DECISIONS
If I employ a Factor and he pays his Debts with my Effects
what Remedy have I ag't his Cred'rs
[151] Suppose the Undersher had actually reced this Mony &
Tob'o & paid the same to the Deft. Could the Sher then have
demanded it as Mony reced to his Use I believe not I cannot
then conceive any Difference in the Reason of the Thing between
actually receiving & pajdng & discoiuiting as in this Case
This Case is of very general Concern Almost every Man pays
his Quitrents &c. to the Undersherif And often no doubt by
Way of Disco't where a Man has an Acco't open with the Under-
sherif And this I believe is the first Time such a Paiment has
been disputed But hereafter it will be unsafe to transact any
Business with an Undersherif if the Deft, is chargeable in this
Case And I must submit whether such a Determination will not
be introductive of a general Inconvenience
But here it is pretended there is a mighty Fraud because the
Mony was never actually paid to the Sher I cannot conceive in
what this Fraud consists A public Collector being indebted to
a Man appoints him to receive some public Debts & then allows
him to apply them in Discharge of his own private Debt Few
Men I believe would scruple to do this or think it any Point
of Dishonesty or Fraud And as to the Mony not being actually
paid That is answered before
The 2. Question is Admitting the Deft, is answerable Whether
the Pit. can maintain an Indeb. assumpsit for Mony &c. reced
to his Use for the Defts. own Quitrents &c. paid the Undersherif
by Way of Disco't as appears in this Case And I conceive he
cannot
This Disco*t must be admitted to be a Paiment or not a Pai-
ment If it be a paiment the Undersher was sufficiently author-
ised to receive them His Discharge we have & there Can be no
Foundation for this Action as to them If this Discount be not
a Paiment as has been strongly urged It must be owned they
are still due But then the Remedy to recover them is not by
Action but Distress Nay there is an express Law that no Action
shall be brought unless the Party be returned insolvent What
Pretence then has the Sher to maintain this Action or indeed
any Action at all Certainly if these Quitrents &c. are not paid
they njust be recovered in the Name of the King & the Officers
to whom they are due
I conceive the Pit. has no Right to recover any Part of this
BARRADALL'S REPORTS B161
Mony & Tob'o of the Deft. Much less can he maintain this Action
for the Defts. own Quitrents And the Law be ag't the Pit. upon
either Point Judgm't must be given ag't him the Dam's being
entire
Sir J. R. for the Pit.
It was not insisted that this was to be regarded as the ICings
Debt But he insisted the Undersherif was no more [152] than a
Servant and cited Dalt. Off. Sher. That if a Serv't is sent to
receive Mony & gives a Discharge without receiving it that
Discharge shall not bind the Master That it was a gen'l Rule
a Master was not bound by the Act of a Serv*t if the Serv't did
not pursue the Authority given by the Master And cited Doctor
& Student Dial. 2 c. 42. p. 258. 6. Mod. Ward v Evans, fo. 36.
He sayed this was a Fraud & Covin between the Undersher &
Deft. & a covinous Paiment was not good 1. Keb. 300. A man
was indicted for pa3ring his poors Rate to an indigent Overseer
ag't the Order of the Justices And 5. Co. 95. Goodals Case where
a pretended Paim't of Mony to satisfie a Condition was not good
But neither of the Cases seem to the Purpose that in Keb.
does not say the Paim't was not good but the Man was indicted
for disobeying the Justices Order. And in Goodals Case the
Reason given is because an Estate of Inheritance by the Paiment
of the Mony was to be devested and therefore it ought to be a
true Paim't & Performance of the Condition
Judgm't for the Pit. October 1735.
Lee, Randolph, Grymes Lightfoot, Tayloe, Custis
Carter, Diggs & the Gov'r Robinson, Byrd for Deft.
for the Pit. Blair gave no Opinion
For the Point of Master & Serv't see 3. Sal. 234.
Vide Sir J. Randolph's Argument Fr. Pit. No. 56.
Doe Lessee of Myhil ag't Myhil.
Edward Myhil seised in Fee devises the Premes in Question
to his Daughter Eliz. for Life Rem'r of one Moiety to Edward
Son of Lockey Myhil in Tail Male and of the other Moiety to Joshua
Myhil in Tail Male with sev'l other Rem'rs over in Tail Rem'r
to his own right Heirs. In which Will there is a Clause in these
Words ** Whereas to my unspeakable Grief my Wife Ann did
** some Years past elope from me & hath ever since lived in
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B164 VIRGINIA COLONIAL DECISIONS
whole Verdict or that the Husband had not Access It would
therefore be absurd as well as full of Mischief & Inconvenience
to look upon this Will as any Evidence as to this Point or at
all to influence the Determination of it And I hope it will be
entirely thrown out of the Question Vi. Mace. R. 439.
And then I take the Case to be very clear for if any Presump-
tion is to be made it ought to be in Favour of Legitimation which
the Law always favours insomuch that in many Instances no
Proof will be admitted ag*t it As if a Child is born but one Day
after^ the Marriage & the Child was begot by another such Child
is legitimate & no Proof or Averment will be admitted ag't the
Legitimacy L Ro. Abr. 358. 2. 3. This is certainly as hard a
Case as where a Man & his Wife live separate but public Con-
venience makes such Institutions necessary & the Judges in
their Determinations inviolably adhere to them The Point of
Bastardy & Legitimacy depending altogether upon the particular
Laws of each Society & differing almost in every Country
Sir J. R. for the Deft, insisted upon 2 Points
1. That the Lessor of the Pit. was a Bastard 2. If he was
not [155] yet he was clearly excluded by the Intention of the
Testator in his Will to take any Estate in the Premes He agreed
the old Law to be as it was opened And sayed it was introduced
by the Superstition of Rome upon the Opinion & Doctrine that
Marriage was a Sacrament But that since the Reformation the
Law had been otherwise taken That the Cases cited out of
Rolle were all before the Reformation except that Fo. 358. 4.
which was in the Star Chamber & therefore not of much Authority
That Coke built upon the old Authorities but the Judges in
later Times had exploded these barbarous & absurd Resolutions
And cited a Case in 1717. out of a Book Pa. 94. concerning
the Removal of a Bastard from one Parish to another where a
Child born of a Wife was adjudged a Bastard tho* she lived all
the time in St. Andrews Parish the Husband in St. Brides — But
note it appears in the Case the Husband & Wife had not seen one
another & so within the Rule in Sal. 123 — He sayed that the
Jury having found they separated 5 Years it must be intended
there was no Access That a Negative was not to be proved & so
the Jury could not find otherwise than they have
He agreed the Will if it stood single would not be Evidence
but being supported by other Circumstances ought to be taken
Notice of He cited the Case of Reason & Franter for the Murder
BARRADALL'S REPORTS B165
of Mr. Lutterall State Tryals Vol. 6. Fo. Where Mr.
Lutterells Declaration after he was wounded being his last
Words was given in Evidence And that a Will was the last Words
of a Man & ought to be believed especially where it was supported
by other Circumstances And so concluded upon the whole that
the Lessor was a Bastard
To the 2. Point he sayed it was clearly the Intention of the
Tes'tor that the Lessor of the Pit. should take nothing And
therefore by the Remainder to his right Heirs he must intend
his next Heir exclusive of the Lessor And so the Person who
was such next Heir might take by that Remainder and that
right Heir in this Case was only Descriptio personcB He sayed
the Rule laid down by Coke 1 Rep. lOS.Shelleys Case & L Inst.
24. b. 26 b. & 164 a. that a Person who will take as Heir by
Purchase must be a compleat right Heir was only Cokes Opinion
& was a groundless Distinction inconsistent with Right, Reason
& common Sense That in Wills the Intention of the Testator
is to govern And therefore an Heir Male might take by a
Devise tho* he was not a compleat Heir if it appeared to be the
Intention in the Will And for this cited 2. Vem. 732. New-
comen & Barkham
To the 2. Point it was answered for the Pit. that so wild an
Argument could not be expected & therefore nothing had been
sayed upon this Head That the Lessor claimed nothing by
the Will but was in by Descent That no one could take any
Estate by Force of the Remainder to the Tes*tors right Heirs
that Remainder being void That it was one of the most known
& settled Rules in Law where a Man makes a Gift in tail Re-
mainder to his right Heirs such Remainder is void. 1. Inst. 22.
b. So it was in this Case And the Reversion is indisputably
in the Heir at Law of the Devisor * ■ ' * ' ^
[156] But admitting the Remainder good The Rule of Law
wherever a Person will take as Heir by Ptirchase he must be a
compleat Heir (however slighted) is an established Rule & was
never denied & has not only Cokes Authority but Dy. 274. Hob.
31. It must be owned however that in Devises a Man may
sometimes take as Heir or Heir Male without being a compleat
Heir either from the apparent Intention of the Testor that such
a particular Person thall take or where the Word Heir &c. is
taken only as Descriptio -personcB 1. Ven. 372. Pibus & Mitford
2. Ven. 311. Jones & Richardson. 2. Cases cited in 2. Vem. 732.
B166 VIRGINIA COLONIAL DECISIONS
supra. And that Case in Vernon which is no more than this
that one as Heir Male tho' not Heir general may take by the name
of Heir Male as a suffic't Description of the Person the Testors
Intention appearing to be so If it could be pointed out in this
Case who the Tes'tor intended by his right Heir these Cases
might be somewhat applicable But without that they are
nothing to the Purpose However that be the Remainder here
in its Creation was void & the Reversion undisposed of by the
Will which descended to the Heir at Law upon the Testors
Death & accordingly we claim it as Heir
Judgm't Oct. 1735. that the Lessor was a Bastard And that
he was excluded by the Will per totam Curiam
Vide Sir J. Randolph's Argument Fr. Pit. No. 52.
OCTOBER COURT MDCCXXXVI.
Legan Lessee of Chew ag't Stevens.
There has been a Survey with a Jviry in the Country & a
special Verdict found here Upon which the Case is In Sep*r 1726.
Col. Taylor a sworn Surveiorsurveied (or pretended to survey) for
the Lessor of the Pit. 1000 Acres of Land of which he returned
a Plat & a Pat. was granted June 16. 1727. This Land except
about sixty Poles from the Beginning was not marked or meas-
ured before issuing of the Pat. And this Chew the Lessor of the
Pit. knew The Deft, afterwards surveys 1000 Acres & obtains
a Pat. in Sep'r 1728. which takes in Part of the Land within the
bounds of Chews Pat. This was marked and measured & the
Surveyor (the said Taylor) told the Deft, the Land was free &
not taken up before It appears by the Jurys Report in the
Country that the Surveior told Chew when he began his Survey &
run the sixty Poles that [157] he could not then finish it being
Saturday Night but would when he came up to finish 2. other
Surveys he had begun the Day before It appears also that in
Jan'ry 1728. when the Deft, first began to seat his Land Chew
forewarned him from digging upon the Land in Controversy
The Survey is of no other Use than to shew how the Grants
interfere And the sole Question in the Case is whether the
Grant to Chew the Lessor be good or not
The Objection is that the Surveyors returning a Plat without
marking & measuring the Land & that with Chews Privity is a
BARRADALL'S REPORTS B167
false Suggestion And so the King was deceived & therefore
his Grant void
This Point has been once already laboured very strenuously &
once YoV Hon'r has determined that the Grant is good But
Sir J. R. is now to convince you of your Mistake However I
hope this case will not be drawn into a Precedent that after
Judgment is passed a Cause shall be suffered to be argued again
because a Lawyer or his Client happen not to be satisfied
It must be my Task to endeavour to shew that this Grant is
good And tho' I shall not produce so many Cases as I presume
you will be entertained with on the other side I hope to prove
1. That there is no such Deceit in this Case as will make void
the Kings Grant 2. That to determine this Grant void will
introduce a general Mischief & Inconvenience upon the Subjects
here
As to the 1. The King is of that great Eminence & Considera-
tion in the Law that many little Defects & Omissions will make
his Grant void w'ch in the Case of a common Person have no
such Effect Such are Misrecitals wrong Suggestions nonrecitals
&c. But the Reason is not as I conceive because the Kings
Honour is concerned as was argued last Coxirt But because
the King is supposed to intend the great Affairs of Govemm't &
cannot take Notice of Matters of lesser Moment as a common
Person may & ought to do Hob. 224 And the true Reason why
the Law adjudges the Kings Grants void in Cases of Deceit are
1. To punish the Party for his Fraud 2. To prevent Damage &
Prejudice to the Kings Interest which would often happen if
such Grants were allowed Hob. 223.
Yet it is not every Circtmistance that strictly may be called
Deceit nor every Wrong Suggestion that will make void the
Kings Grant and where the King is not deceived in the Cons,
in his Title in the Value of the Land or in the Restraint he
intended to make for his Benefit Or generally where it is not
to the Prejudice of himself or his Subjects the Grant will be
good Even false Considerations will not always defeat the
Kings Grant As where it is personal & executed As for Mony
p'd or Service done tho' the Mony was not actually paid or the
Service done the Grant will be good 10. Rep. 67. 68. St. Saviors
Br. Patents 4 Mo. 415. Sav. 37. 3. Leon. 248. PI. 455. a. The
Reason is tho' this be a Deceit Yet the Law does not esteem it
so weighty or material as to destroy the Grant Hob. 222.
B168 VIRGINIA COLONIAL DECISIONS
If there was any Thing in the Argument of the Kings being
injured in Point of Hon'r this sort of Deceit is as injurious to his
Hon'r as [158] any other But as I never read or heard of that
Argument till last Court until I have some better Authority
for it than Sir J. R. he must excuse me if I look upon it as a
meer refined Speculation of his own In other Cases it has
been thought to be for the Honour of the King to make his
Grants valid not to destroy them as in the Point of Construction
If 2. Constructions can be made and by one the Grant will be
void and by the other good For the Honour of the King &
Benefit of the Subject such Construction shall be made as will
support the Grant 10. Rep. 67. b. St. Saviors. 6. Rep. 6. Sir
John Molin. And certainly it is more for the Honour of the
King to pass over small Faults where it is not to the Prejudice
of himself or his Subjects than to be too rigorous in taking
Advantage of them In the Case of a Common Person I am
sure we should think so. 2. Inst. 496. 497. 1. Mod. 196.
Read Hob. 222. & St. Saviours Case 2. Inst. 2. Mod. 1.
If the King by Office found has a Mannor in Ward & grants the
said Mannor by certain Name which said Mannor was lately
seised in our Hands &c. And in Truth the said Mannor was not
seised This shall not avoid the Grant tho' false for it is not
material & was only added for the greater Certainty of that
which was certain enough before 10. H. 4. 2. Sir John Lestrange.
cited in Legats Case 10. Rep. 113. a.
Q. Eliz. granted to Thos. Markham the Office of Keeper of the
Parks of Woods of B. which said Office the E. of Rutland lately
held whereas the said E. never held the said Office And it was
resolved by the Chancellor Attorney & SoUicitor general to
whom it was referred that the Grant was good notwithstanding
that false Suggestion So if the King demise a Mannor by
special Name which Mannor was lately in the Tenure of I. S.
but in Truth he never had it. Yet the Grant is good for in
these Cases the King is not deceived in his Title nor in the
Value of that he intended to grant nor in the Restraint which
he for his Profit intended to make. Sir Tho. Markhams Case
cited in Legats Case supra — Qtiod lege —
H. 7. Anno 19. granted to G. B. the Mannor of B. in Tail Male
And Anno 24. by Letters Pat. reciting the former & that they
were surrendered & cancelled by Virtue whereof the King was
seised in in Fee granted the said Mannor to the said G. B. & F.
BARRADALL'S REPORTS B169
his Wife & the Heirs of G. (without any Grant of the Reversion)
And the Question was if the Reversion would pass by this last
Grant It was objected 1. that the Estate tail was not recited
as continuing whereof the Reversion might be granted but as
determined And therefore the King granted it as a Thing in
Possession when he had only the Reversion expectant 2. The
King thought by the Surrender of the first Letters Pat. the
Estate tail was determined & that he was seised in Fee in which
he was deceived 3. The King was deceived in the Estate he
granted for he intended to grant an [159] Estate in Fee in
Possession & not a Reversion expectant But it was adjudged
that the Grant was good to pass the Reversion for here was no
Wrong done to any one and less passed by the Grant (sc. the
Reversion) than the King intended and .so no Prejudice to him
6. Rep. 55. Lord Chandos. Lege 2. Mod. 1.
Where was the Regard to the Kings Honour in this Case or
those others I cited Yet it is evident he was deceived but the
Deceit was not material no Ways to his Prejudice & so not
weighty enough to make void his Grant. Many other Instances
of the like Kind might be given but these I hope may suffice
to show that tho* the King be deceived if it be not in the Con-
sideration that is real in his Title in the Value of the Land or in
the Restraint he intended to make for his Benefit the Grant may
be good. It will remain then to consider whether the Kmg
was so deceived in the present Case whether the Deceit alledged
be so weighty or material as that it should make the Grant void
The Method established here for granting the Kings Lands has
been always the same a Survey is first to be made and a Plat
returned before any Patent issues Not that there is any positive
Law for this but it has been the Course and Usage from the
first Settlement and took its Rise & continues its Force meerly
from the Kings Authority & Institution who no Doubt may
establish any other Method for granting his Lands if he pleases
Now that many Patents must have been granted formerly
without the ceremony of marking & measuring the Land (the
Want of which is the great Fraud & Deceit here complained of)
must be evident to any one who considers the State of Things
upon the first Settlement of the English here The Indians were
then in great Numbers all over the Country and it could not be
done with any Safety or Security and indeed the Disputes we
have concerning the Bounds of the old Grants prove this Point
B170 VIRGINIA COLONIAL DECISIONS
to a Demonstration since in many of them there appears never
to have been any marked Lines or Boundaries and ahnost in all
a vast Difference between the Courses & Distances of the Pat &
the ancient Possession under them But I never yet heard
that any of those Grants have been impeached because the
Land was not marked &c. tho' we may expect they will if it is
Your Honors Opinion that that Defect is sufficient to avoid the
Kings Grant That being equally necessary then as now There
was no positive Law then nor is now making it necessary or
essential and therefore by the same Reason that a Grant made
ten years ago is void for Want of that Circumstance A Grant
made 50 or 100 Years ago must be void for Want of the like
Circumstance The Length of Time will make no Difference in
the Case of the King
It will be sayed perhaps there is an Act of Assembly directing
the Surveior to bound the Land surveied by him by marking
Trees And it is true there is such an Act And no Doubt the
Surveior ought to have done it But then I must observe that
Act is meerly directory [160] to the Surveior The Title is An
Act directing the Duty of Surveiors 4. Ann. c. 22. And the
whole Scope of it plainly shews nothing more was intended
There is not a Sillable of the Kings Grants Or that they shall
be void if the Surveior does not do his Duty. Nor would the
King I presume be pleased to be so prescribed to This Act then
is nothing to the Purpose only to shew the Surveior has not
done his Duty which I allow But it is no Consequence I
hope that therefore the Kings Grant is void I am sure the Act
says not such Thing.
But here Chew the Grantee was privy to this Neglect of Duty
in the Surveior And this is made a mighty aggravating Cir-
cumstance It may be necessary therefore to obviate the
Force of that Objection It was sayed last Court that the
Grant was a meer Forgery That there was a Combination
between Chew & the Surveior tho' to what End I know not &
shall be glad it may be pointed out It is found indeed that
Chew knew the Land was not marked or measured when he
took out his Plat but then it appears in the Depositions that
the Surveior when he begun the Survey made an Excuse for
not finishing it That it was Saturday Night but promised to
do it when he came up to finish some other Surveys This
Chew might reasonably suppose^ he would do in nine Months
BARRADALL'S REPORTS B171
which passed before he sued out his Pat But admitting he
was somewhat too hasty in getting a Plat & obtaining a Pat.
before this was done I cannot see how this can be term'd a
Fraud it was rather a piece of Ignorance an Error of the Judg-
ment not any depraved or sinister Intention Nor does there
appear any Advantage he could possibly propose by it to
himself Nor any Fraud upon the King for the full Composition
was paid Nor more Land within the Bounds than mentioned
in the Grant and the full Quitrents honestly paid ever since
Neither could he intend or foresee any Prejudice to another.
He might well think the Surveior would finish his Survey accord-
ing to his Promise And if he he did not do it 'tis he alone is
guilty of the Fraud & not Chew and ought to answer for the
Injury done to the Deft, which he or his Representatives may
undoubtedly be compelled to notwithstanding the contrary
was asserted last Court
This mighty Fraud then in Chew of being privy to the Sur-
veyors Neglect when fairly stated & considered appears to be
no more than a piece of Ignorance & folly without any Prob-
ability of a fraudulent or sinister Intention either with Respect
to the King or any one else. The Surveior is undoubtedly inex-
cusable But then whether his Neglect of Duty ought to make
void the Kings Grant must be humbly submitted
[161] I shall now speak a Word to the 2. Point which was to
shew the general Mischief & Inconvenience that will be intro-
duced if it is determined that any Neglect of Duty in a Surveior
or his omitting to mark & measure the Land surveied shall
make void the Kings Grant I have had Occasion already to
speak of the old Grants upon the first Settlement here by the
English And it is evident I hope from what has been sayed
that the Lands then could not be marked or measured It is
further notorious that in later Times Surveiors have been very
remiss & negligent in their Duty. Many Plats upon which
Grants are founded have been returned without stretching a
Chain or marking a Tree Therefore if it is determined that
Grants are void for these Slips & Frauds of the Stirveior it will
introduce an universal Confusion & shake for ought I know
half the Titles in the Country No Purchasor can be safe under
a Possession tho* ever so long if the Crown thinks fit to repeal
the Grants far no Time will bar the King In short to deter-
mine that a Grant is void because the Surveior did not mark &
B172 VIRGINIA COLONIAL DECISIONS
measure the Land before he returned his Plat will be in Effect
to declare that half the Patents in this Country are void
Now the Judges in their Determinations have Regard to the
Generality of the Subjects Cases & the Inconvenience that may
ensue 1. Rep. 52. Vaughan lays it down as a Rule that where
the Law is known & cleax tho' unequitable or inconvenient the
Judges must determine as the Law is But where the Law is
doubtful & not clear the Judges ought to interpret it to be at
least inconvenient To apply this — As it is far from being clear
that the Defect of the Surveior in not marking & measuring the
Land is such a Deceit or false Suggestion as will make the Kings
Grant void and as such a Determination will be introductive of
a general Mischief & Inconvenience & tend to destroy many
Mens Titles to their Inheritance I hope it will not be Your
Honours Opinion.
As to any Hardships that may be pretended on the Defts.
part And I remember a great deal was sayed af that last Court
I hope Chew is not to answer for that it being altogether the
Surveiors Fault of whom he must seek for his Remedy And as
to losing his Houses which is Part of the Hardship complained
of that is owing to the Defts. own Folly & Obstinacy since it
appears Chew forewarned him building upon the Land in Con-
troversy alledging it was within his Bounds And the Deft, could
not be ignorant that it was so by offering to purchase of him
So his Damage upon this Account is of his own Seeking & ought
not to be at all considered And I must submit whether the
Hardship will not be as great upon Chew to lose his Land meerly
for a Neglect of Duty in the Surveior for I can consider it in no
other Light when he has honestly paid the King his Rights
which is in the Nature of Purchase-mony Has no more Land
than he ought to have and has paid the full Quitrents ever since
the Time of his Grant. But in Truth the Hardships on either
[162] Side should be thrown out of the Question And the
general Inconvenience is what ought to be considered This I
hope I have sufficiently shewn And so humbly pray Judgm*t
for the Pit.
Randolph for the Deft. The Question is not Whether the
Pits. Grant be absolutely void but whether it be good ag't the
Deft, who has obtained a fair Grant & observed all the Rules
prescribed by the Law whereas the Pits. Grant is a meer Forgery
procuring a Plat to be returned & taking out a Patent upon it
BARRADALL'S REPORTS B173
when he knew the Land was not surveied was a very great
Fraud upon the King a false Suggestion of the Party himself
and must make the Grant void At least so far as not to hurt
an innocent Person as the Deft, is The Rules for granting
Lands here have been the same from the first Settlem't of the
Country The first Charter to the Company impowered the
Gov*r & Council to settle the Priviledges of Adventurers which
was done by allowing 50 Acres to each Adventtirer The same
Course was observed after the Dissolution of the Company
without any positive Authority till the Time of Ja. 2. When a
new Clause was added to the Governors Commission to grant
50 Acres for Importation but no Land was granted for Money
till 1703. Surveying was always necessary & required before
any Grant was made And where an essential Circumstance is
wanting the Grant must be void Vemons Case 1. Vern. 370.
Vernon & Benson Mod. Ch. Ca. 47. Much more here where the
Party himself was privy to this Neglect of Duty in the Surveior
and so joined with him in the Deceit upon the King The Par-
taker in a Fraud is equally guilty with the Contriver The
Law abhors all kind of Fraud A Fine tho' the most solemn
Conveiance if levied by Fraud & Covin is void 3. Rep. 77. Fer-
mores Case As to the Inconvenience this Case must be distin-
guished from those where the Surveior alone is in Fault and the
Grantee no Ways privy In that Case it might be hard that an
innocent Person should suffer for the Neglect of Duty in an
Officer but here the Party knew the Officer had not done his
Duty It was a Contrivance & Combination between them
and a great Piece of Presumption & a notorious Deceit upon
the King for the Pit. to take out a Pat. upon such a Piece of
Forgery as the Plat was Surely no Favour or Countenance is
due to such a Practice Especially when an innocent Man is to
be oppressed & ruined by it
To prove the Grant void were cited Alton Woods Case
1. Rep. 40. b. Vows Case cited in Legats 10. Rep. 110. b.
[163] In April 1735. Judgm*t was given for the Pit. by the
Opinion of 7. Judges ag't four But upon the great Importunity
of the Defts. Council the Court was prevailed upon to hear
another Argument which was made October 1736 when Blair &
Byrd having changed their Opinions Judgm't was given for the
Deft, by the Opinion of those two & Randolph Grymes Carter &
Digges — Lee Tayloe Custis Robinson & the Governor con.
B174 VIRGINIA COLONIAL DECISIONS
Lightfoot formerly for the Deft, now doubted Carter did not
hear the I. Argument
Note The Courts Opinion turned upon the Fraud (as it was
termed) in the Pit. viz his knowing the Land was not surveyed
Vide Sir J. Randolph's Argument Fr. Deft.
No. 53. & post cod. Lib.
OCTOBER COURT MDCCXXXV
Legan for Armistead ag*t Newton.
The Lands in Question were granted to Behethland Gilson
by Pat. Sep'r 27. 1667. And again granted to Tlios. Gilson Oct.
20. 1670. as lapsed from Behethland She at the time of the
Grant to her was but a Year old Died in Oct. 1693. being then
the Widow of one Stork And by her Will devised the Premises
to her Daughter Eliz. whose Heir apparent the Deft, is Eliz.
was bom in 1687. married in 1702. to the Defts. father who died
in 1728 the Land was first seated for Behethland in 1692. ac-
cording to the Law then & no Seating before The Deft, has
Behethlands Right & is 33 Years old In May 1705. Augustine
Smith obtained a Grant of the aforesaid Lands as lapsed from
T. Gilson and the Lessor of the Pit. has his Title Smith seated
it according to the Condition of his Grant But except the
seating by Behethland & that by Smith no Person has ever
lived upon the Land till the Deft, ent'red in 1729 & settled a
Plantation Only one Daniel after 1710 by Permission of the
Lessor tended part of the Land sev*l Years Smith & the Lessor
have paid the Quitrents from the Time of the Grant to Smith &
even since the Defts. Entry to this Time And whether the
Lessor or the Deft, have Title to these Premises is the Question
For the clearer Understanding of this Case I shall divide
what I have to say into 5 Points or Questions 1. 1 shall consider
whether the Infancy of Behethland the first Grantee did or
could excuse the Forfeiture for the Breach of Condition in not
seating within [164] three years If not then 2. Whether the 2.
Grant to T. Gilson was good 3. Whether the seating in 1692.
by Behethland did or could give her any Right or be taken as a
Performance of the Condition either of the 1. or 2. Grant so as to
make the 3. Grant to Smith void 4. If this Seating be taken as
a Performance of the Condition of the 2. Grant Whether the
BARRAD ALL'S REPORTS B175
Deft, has any Title under T. Gilson the 2 Grantee. '5. Admitting
the Grant to Smith is void Whether the Possession of the Lessor
of the Pit. above 20 years before the Defts. Entry was not a Bar
to that Entry and is a good Title in the Lessor
L I take it to be very clear that the Infancy of the Grantee
will not excuse the Breach of the Condition There are 2 sorts
of Conditions in Law or [sic] implied in Deed or express The
Breach of Conditions in Law in the Case of Infancy will some-
times cause a Forfeiture & sometimes not 1. Inst. 233. b. 380.
b. 8 Rep. 44. b. But Infancy will never excuse a Forfeiture in
Case of the Breach of a Condition in Deed As if Land be given
to an Infant upon Condition or he purchase such Estate or even
if an Estate upon Condition descend to him he is bound by such
Condition & must take Notice of it at his Peril for if the Con-
dition be broken during his Minority the Land is lost Bro.
Condition 114. Coverture & Infancy 71. Plo. 375. Stowell 8.
Rep. 44. b. Whittingham 1. Inst. 380. b. 1. Mod. 86. 300 & 2.
Lev. 22. Porter a Fry a notable Case An Estate was given to
a Grandaughter an Infant upon Condition she married with
Consent and if she married without Consent Then Devise over
She married without Consent under Age And one Point adjudged
is that her Infancy would not excuse the Breach of the Con-
dition And even Equity refused to relieve ag*t it And so
in the Case of Bertie & Lord Falkland 2. Vern. 343. the like point
was resolved. Lege 8. Rep. 1. Mod.
This is the Law in the Case of a Subject and it is stronger in
the kings Case for these Conditions are always taken strictly &
as most for the Kings Benefit
If the Act of 11. Ann. c. 4. for saving Infants Rights in Case
of Lapse should be objected I answer an Act made so long after
and providing only for Cases futurely happening can never in-
fluence this Case Besides this Case is not at all within the Pur-
view of that Act which only saves Infants Rights in Case of
Lapse not where they are original Grantees or Purchasors And
now I have mentioned this Act I must take Notice of it as a
further Proof that Infancy will not excuse the Breach of a Con-
dition for if it would this Act had been needless I hope then it
is clear that the Infancy of Behethland the first Grantee did
not excuse the Forfeiture for the Breach of Condition And it is
next to be enquired
2. Whether the 2. Grant to T. Gilson be good It is the Nature
B176 VIRGINIA COLONIAL DECISIONS
of an Estate upon Condition that if the Condition be broken the
[165] Grantor has a Right of Entry If he cannot enter as in some
Cases he cannot he must make a Claim And in either Case of
Entry or Claim the Estate determines & not before 1. Inst. 218.
a. It will be objected perhaps that the King cannot enter for
a Condition broken till the Breach is found by Office Pop. 26.
And I agree that regularly there ought to be an Office But then
I say it was never practised in this Country I mean in a strict &
formal Sense for something in the Nature of it has been always
used and practised at least from the Year 1662. By an Act
made then c. 69. No Pat. is to be granted for Land as deserted
for Want of planting within 3 Years till Proof be made before
the Governor & Council & an Order from them for the patenting
thereof Thus the Law stood here till the 9. Ann. c. 13. when a
new Method was established for this Purpose which is too well
known to need reciting The old Method as well as the new were
instituted in the Room and are in the Nature of an Office. It is
indeed notorious that under the old Act Lands were frequently
granted upon a meer Suggestion that they were lapsed without
any further Enquiry And therefore this Court upon Proof made
that the Land was saved has frequently adjudged such 2 Grants
to be void & with good Reason because they were founded upon
a false Suggestion and the King was deceived But there can
be no Pretence of that Kind in this Case because it is found
in the Verdict that this Land was not seated till 1692 above
20 Years after this second Grant And at this Distance of Time
it must be presumed the Grant was regularly obtained according
to the Directions of the old Act since nothing appears to the
contrary And in the Grant itself it is mentioned to be by Order
of the General Court If then this Grant was regularly obtained
there was an Enquiry in Nature of an Office according to the
Course & Practice of those Times and then the King might enter
as he did & granted the Lands to T. Gilson And such Grant is
undoubtedly as good as any other under the same Circumstance
Nor has the Validity of such Grants been ever disputed except
where it has been proved that the Land was saved Here then
is a Period to Behethlands Right & Title under the first Grant
And the legal Estate in the Premises vested in T. Gilson How
Behethland ever gained any other Right or Title will be incum-
bent on the Deft, to shew for my Part I cannot so much as guess
at it for I cannot conceive
BARRADALL*S REPORTS B177
3. That her Seating in 1692 (w*ch is the 3 Point) could give
her any Right or be taken as a Performance of the Condition
of the 1. or 2. Grant which if it should would consequently make
the 3. Grant to Smith void. I have before observed that if the
Grant to T. Gilson was good the Legal Estate of Behethland
determined when that Grant was made I cannot conceive then
how a tortious Act of hers 20 Years after could regain that
Estate she had forfeited so long before I call this Seating of
hers in 1692. a tortious Act [166] for if the Grant to T. G. is
good & his Estate continued it was a Disseisin or Trespass upon
him If his Estate did not continue but was become forfeited
it was an Intrusion upon the King I am really at a Loss to divine
what Arguments can be made Use of to prove that such an Act
can give any legal Right or Title And therefore I must be silent
till I hear what they are Sure it won't be pretended this was
any Performance of the Condition of the 1. Grant to Behethland
20 Years after the Condition broken and Entry made for the
Breach & thereby the Estate determined
Neither can this Seating be taken as a Performance of the
Condition in the 2. Grant as I humbly conceive being so long
after the Time Hmited in the Grant for Performance I shall
admit that a Seating by one who has no Right shall enure to the
Benefit of those who have Right but then I think this Seating
ought to be within the Time limited Suppose we were in the
Case of a Subject an Estate is granted upon a Condition to be
performed within 3 Years which is not done the Grantor does
not enter but suffers the Grantee to continue in Possession who
many Years afterwards performs the Act required by the Con-
dition I believe this would not be taken as a Performance of
the Condition or bar the Grantor of his Entry And if not in the
Case of the Subject much less in the Kings Case where Con-
ditions are always taken strictly & as most for the Kings Benefit
And the Equity will sometimes interpose to save a Forfeiture
where the Design & Intention of the Grantor is fulfilled tho* the
Condition be not strictly performed That was never known
in the Kings Case. Besides the Intention here was not fulfilled
which was to have the Land seated & cultivated I conceive then
this Seating in 1692. was no Performance of the Condition of the
2. Grant And then the Grant to Smith 1705 is a good Grant And
the Lessor of the Pit. has a clear Title
4. But if this Seating can be taken as a Performance of the
B178 VIRGINIA COLONIAL DECISIONS
Condition of the 2. Grant It must next be seen if the Deft,
has any Title under T. Gilson the Grantee Upon which Head I
shall not need to say much because I am sure no Title at aU
appears either in the Deft, or Behethland Under whom alone it
is the Deft, pretends to claim They were neither of them Heir
to T. G. Nor was any Conveiance ever made by him of his
Right So that there can be no Pretence of any legal Title under
him. If they will set up an equitable Title as I don*t know what
they may pretend to It will be unnecessary to give any Answer
We are at Common Law and I presume the Determination will
be upon the legal Title & not any imaginary equitable one if any
such is pretended.
5. Admitting the Grant to Smith is not good Then it is to be
[167] considered Whether the Possion of the Lessor of the Pit.
above 20 Years before the Defts. Entry was not a Bar to that
Entry & gives the Lessor a good Title in this Case
By the Stat. 2L Jac. c. 16. s. 1. 2. which are enacted here ioti-
dent verbis 9. Ann. c. 13. (a) Any Person having a Right of Entry
must make that Entry within 20 Years after the Title descended
or accrued or is barred from such Entry With the usual Savings
to Infants Feme-coverts &c. who may enter within ten Years
after the Disability removed This Act being express that the
Party shall be barr'd if he does not make his Entry within 20
Years A Possession of 20 Years is compared to a Descent that
totls Entry And therefore if a Man has been so long in Possession
& another enters upon him & puts him to his Ejectment That
Possession shall be as good a Title in him (tho* Pit.) as if he
was Deft. & still in Possion because the Defts. Entry was not
lawful 2. Sal. 421. Stokes a Berry There is another Rule too
that if a Man has a prior Possion & another enters upon him
without Title the Priority of Possion is a good Title ag*t such an
Entry Vaugh. 299. Craw a Ramsey 2. Saund. 112. The Lessor
of the Pit. & those he claims under were in Possession from the
Time of Smiths Grant in 1705. till the Defts. Entry in 1729.
w*ch is 24 Years And this Possession is a good Title unless some
Incapacity has intervened in the Deft, or those he claims under
Admitting any Title does appear for him And if no such does
appear Then the Priority of Possion is a good Title ag't the Defts.
Entry without any Title at all, Lege Salk. Because I would
(a) It is not so. See the Stat. & the Act.
BARRADALUS REPORTS B179
not take up Time unnecessarily I will agree that if Behethland
had a good Title in her at the Time She devised to her Daughter
Eliz Our 20 Years Possion will not avail because Eliz. in whose
Time our whole Possion was has been under the incapacitys
of Infancy & Coverture during all that Time But I hope it is
clear she had no Title after the Grant to T. Gilson And then
tho' the Seating in 1692 should be taken as a Performance of
the Condition of the 2. Grant & so the Grant to Smith is void
Yet the Deft, having no Title under T. G. Our Priority of Possion
is a good Title ag't his Entry At least the 20 Years Possion is
undoubtedly a good Title ag*t T. G. & all claiming under him
there appearing no Incapacity as to them
Randolph for the Deft, sayed the Question was whether the 2
or 3 Grant were good That where an Estate was granted upon
Condition tho' the Condition was broke the Estate continued till
Entry of the Grantor And where an Entry was necessary in the
Case of a Subject an Office was so in the Case of the King There-
fore that the Breach of the Condition of the first Grant must be
found by Office before the Estate of the first Grantee was de-
termined That it did not appear in this Case by any Proof
that the Condition of the first Grant was broken before making
of the 2. Grant nor even so much as that the Party was summoned
which was certainly requisite according to natural Justice but
the 2. Grant might be made without any Enquiry into the Truth
or hearing the Party as Grants frequently [168] were in old
Times & then it is certainly void He cited Pop. 53. to prove
that an Office in the Kings Case countervailed an Entry in the
Case of a Subject {QtuFre of this for by Pop. 26. there must be
an Entry after the Office) He compared this to the Case of
Carter & Baylor tho' there is really no Kind of Similitude be-
tween 'em. That Case which happened in [sic] was in short
this Edward Hill obtained a Patent in 1683. for 2717 a. In 1693.
he gave the Land to Ed. Chilton & Hannah his Wife (who was
his Daughter) & their Heirs In 1698 Ed. Chilton (alone) sold
to Baylor who cleared enough to save the Land according to
the Law then And afterwards in 1704. obtained a new Grant
of the same Land as lapsed from Hill Hannah survived her
Husband Ed. Chilton & Mrs. Carter was her Heir And so if the
Grant in 1704 to Baylor was not good had an undoubted Title
And it was adjudged that Grant was not good the Land being
saved before and tho* it was saved by a Stranger not the Grantee
B180 VIRGINIA COLONIAL DECISIONS
or those who claimed under him it should enure to the Benefit
of those who had Right
Judgm't for the Pit. October 1735 by the Opinion of Lee,
Tayloe, Robinson, B3n'd, Blair & the Governor
Randolph, Custis, Digges con.
Vide Sir. J. Randolph's Arguments Fr. Def. 18° [sic] 57.
Doe for Fitzhugh ag*t Burwell.
The Lessor of the Pits. Title.
Thomas Wilkinson obtained a Pat. dat. June 8. 1662 for 6000
acres of Land formerly granted to him by Patent June 10. 1658.
Part of which Land he sells & by his Will Apr. 25. 1688. devises
the Rest to his Wife Ann & Daughter Eliz. and if his Daughter
died before 14. then all to his Wife in Fee The Dau'r died before
14. After whose Death the Wife (then Ann Goodall) by Deed
Aug. 29. — gives the Premises devised to her to her Son-in-Law
W*m Thomas & Hannah his Wife her only Daughter & their
Heirs
Thomas & Ux'r by Deed Oct. 26. 1692. sell to Wm. Fitzhugh
the Father of the Lessor of the Pit. who devised the same to him
And he & his Father have been in Possession ever since At least
above 20 Years it appears by the Depcons before the bringing
this Suit There is no Title found for the Deft. And his first
clearing upon our Land was about 15 Years before this Suit.
The Objection to this Title is that Thomas & his Wife were
[169] Jointenants and she was not privately examined upon
passing the Deed to Fitzhugh So it was merely the Deed of the
Husband And he alone could not make a good Title Not even
for a Moiety but the Wife after his Death might enter into the
whole for they took by Entierties 1. Inst. 187. 188. 299. b. 351.
a. 326. a.
It must be owned our Title does not appear indefeazable
Yet I conceive our Possession above 40 Years under the Grant
from Thomas & his Wife is a good Title to maintain an Ejectm't
If the Husband survived we have an undoubted indefeazable
Title for he being Jointenant with his Wife would have the whole
by Survivorship We have his whole Right and he or his Heirs
can never claim ag't his Deed Now as at this Distance of Time
it can't be proved whether he or his Wife died first it ought to
be presumed that his Wife did in Favour of so long a Possession
BARRADALL'S REPORTS B181
for a continued & quiet Possession is a violent Presumption of
a Title And that in the Law is taken for a full Proof 1. Inst. 6. b.
But further this Possession would bar even the Wife & her
Heirs (admitting she survived) in an Ejecm't unless she or they
were under some Incapacity 20 years Possession is a good Title
in Ejectment The Reason is that by the Act of Limitation a
Man is barr*d of his Entry after 20 Years And therefore so long
a Possession is compared to a Descent that takes away an
Entry 2. Sal. 421. Stokes ag*t Berry. Vide Armistead & Newton
ante 163.
Our Title then may possibly be indefeazable and is undoubtedly
a good Title ag't all but the Heirs of the Wife especially ag't
the Deft, who ent'red without any Title at all It appears the
first Entry (or rather Trespass) of the Deft, was but about 15
Years ago & that only by clearing some Land And there is no
Title or Pretence of Title set up in the Deft. If this Clearing a
little Ground within our Bounds is adjudged a Disseisin a Man
in this Country will hardly know when he is in Possession of Land
I conceive the Deft, can be regarded only as a Trespassor &
then surely our Possession is a good Title ag't him But if this
is looked upon as an Ouster of us yet we had a prior Possession
And that alone is a good Title ag*t one entring without any Title
at all Vaugh. 299. Crawft Ramsey. 2. Saund. 112.
It seemed to be agreed in the Case of Woodford & Corbin that
if it appeared in the Verdict Woodford had had Possession of the
Land in his Pat. (tho* not of the Spot in Controversy) he had a
good Title And the Deft, was but a Trespassor And because
his Possession did not appear upon the Verdict Judgm't was
ag*t him. Now as our Possession is sound I hope Judgment will
be for us.
This Cause was agreed by the Parties.
[170] LuTWiDGE a French Appeal from Stafford
The Appellant brought an Action at Law ag't the Respondent
upon a Bond in the Penalty of 12000 lb. Tob'o conditioned for
Paim't of 6000 lb. Tob'o to which the Deft, pleaded Paiment.
There was a Verdict for the Pit. and he had Judgm't for the
Penalty to be discharged on Paiment of the Principal & Interest
The Respond't exhibits a Bill to be relieved ag*t this- Judgm't
setting forth that he by his marriage with the Widow of one
B182 VIRGINIA COLONIAL DECISIONS
Triplet became possessed of the Estate belonging to his Children
And being willing to do the best for them in 1720 boimd out
Francis Triplet (whom he makes a Deft.) to the Deft. Lutwidge
who was Master of a Ship And the Bond aforesaid was given for
Paim't of the Apprentice fee viz. 6000 lb. Tob'o which Triplet
promised to allow out of his Estate when he came of Age
That the Deft. Lutwidge neglected to instruct Triplet according
to his Indentures so that he left him 5 or 6 Months before his
Time out & was so ignorant in his Business he was forced to
turn Bricklayer to get a livelihood
That in 1725 or 26. the Complt. performed great Services for
Lutwidge of more than the Value of 6000 lb. Tob'o for w'ch he
charged nothing in Regard of his afs'd Bond That the Deft,
by letter dated desired the Pit. to pay a small Sum of Mony
for him & he would make him a Present of what else was between
them which Sum the Pit. paid That afterwards the Pit. had
considerable Dealings with the Deft. & settled several Accosts
particularly one for 24626 lbs. Tob'o &23.1 1. 4. & the Bond never
brought to Acc't So that Pit. never expected to be charged with
it Apprehending the Deft, intended to acquit the same for the
Pits, great Services
That the Deft. Triplet after he came of Age recovered his
whole Estate of the Pit. without allowing the said 6000 lb. Tob.
And Pit. therefore prays to be relieved either against the said
Judgm't or ag*t Triplet
The Deft. Lutwidge pleads the Verdict & Judgm't af'd in Bar
And also demurs for that there is no Equity in the Bill That the
Pit. may have Remedy for his pretended Services at Law That
the Court cant decree a Performance of the Agreem't concerning
Triplets Apprenticeship nor assess Damages for the Nonperform-
ance or for the Pits, pretended Services. That the Deft. Lutwidge
is no Way concerned in the Transactions between the Pit. &
the other Deft. Triplet nor ought they to be a Bar to his having
the Effect of his Judgm't
The County Court overruled this Plea & Demurrer w'ch I
conceive is Error
As to the Plea If we may credit Sir E. Coke & other old
[171] authorities Anciently it was held that after Judgment at
Law a Court of Equity could not interpose upon any Pretence
whatsoever 3. Inst. 119. &c. That the Stat, of Premunire 27.
E. 3. 1. prohibits it under great Penalties And the 4. H. 4. c. is
BARRADALL'S REPORTS B183
express that after Judgm't the Parties shall be in Peace till the
Judgment is undone by Attaint or Error Thus the Law was
taken for some Ages & there are sev*l Instances where in the
hardest Cases the Chancery refused to relieve after a Judgm't
at Law And many have been convicted of a Premunire upon the
27. E. 3. for suing in Chancery after such Judgm't.
But this Point coming in Question in the Time of James L
It was by his Command referred to the Attorney & Sollicitor
gen'l & other able Lawyers who certified their Opinions that
the Chancery might relieve after a Judgment at Law And that
the said Statutes 27. E. 3. & 4. H. 4. did not prohibit it And thus
it rested for 40 Years till the 22. Car. 2. c.
When An Action was bro't on the 27. E. 3. for suing in
Chancery after Judgm't at Law The Case is King ag't Standish &
is reported in sev'l Books. L Sid. 463. where it seemed to be the
Opinion of Keling C. J. & Twysden that the Deft, had incurred
the Penalty of the Stat. By 1. Mod. 59. it was adjourned for the
Opinion of all the Judges And by 1. Lev. 40. Hale being then
C. J. it was his Opinion that the Case was not within the Statute
And so nothing further was done in it It was Hales Opinion
that the 27. E. 3. did not prohibit the Chancery from examining
Judgm'ts at Law & with good Reason because the Chancery
as a Court of Equity was not in Esse at that Time but yet he
was of Opinion that the 4. H. 4. did restrain the Chancery from
examining Judgments at Common Law as appears in Cole &
Forth. 1. Mod. 94.
However it must be acknowledged that of late Days the
Chancery as it has extended its Power & Jurisdiction in other
Instances insomuch that almost all Causes of Moment are first
or last determined there So also in this particular of relieving
after Judgments at Law Yet this has been very sparingly done
where there has been a Verdict & the Merits of the Cause fairly
tried as in this Cause And there is less Reason the Chancery
should exercise such a Power here where the strict Rules of Law
are not very rigidly adhered to either by Judges or Juries And
the Deft, having the Liberty of Discount which he has not by the
Laws of England he has many Advantages in his Defence which
he could not have in England And tho' it might be mischievious
to carry the Point so far as never to give Relief after a Verdict
or Judgm't Yet on the other Hand it would be much more mis-
chievious to countenance it upon all Occasion unless there is
B184 VIRGINIA COLONIAL DECISIONS
some very apparent Wrong or Jnjustice in the Case And that
for 2 Reasons mentioned by Sir E. Coke 3. Inst. 123. 1. That
it will draw Matter determinable at the Common Law ad aliud
exatnen which should be tried by a Jury by the fundamental
[172] Laws of England 2. Every Pit. will choose rather to.begin
in Equity whether he must come at last to the Subversion of the
Common Law which last Mischief is found pretty true in Ex-
perience as I have already observed.
Now it will be proper to observe what is the Wrong & Hardship
complained of here to induce this Court to unravel a Judgment
upon a Verdict at Law And it really amounts to no more that
this that the Compl't performed great Services for the Deft,
for which he charged nothing in Expectation the Deft, would
not charge him with the Bond upon which the Judgment was
obtained This is the only Pretence that has any Appearance
of Hardship As to the other Suggestions in the Bill concerning
the Nonperformance of the Articles of Apprenticeship & Triplets
Promise to allow the 6000 lb. Tob'o out of his Estate &c. I
shall shew presently they cannot be any Reason for unravelling
this Judgment
And as to these pretended Services if there were really any
such the Comprt might have made Proof of them upon the Trial
at Law And the Jury would have made an Allowance by Way
of Discount Perhaps this was done & the Jury thought he
deserved nothing If it was not it was the Compl'ts Neglect
And Equity will not relieve ag*t such Negligence 1. Ch. Ca. 43.
But besides he does not pretend the Deft, ever promised to
give up this Bond in Cons, of those Services tho' he would en-
deavour to infer as much from a Letter wherein the Deft, desires
him to pay a small Sum & that he would make him a Present
of what else was between them But if he had intended to make
so considerable a Present as 6000 lb. Tob. he would hardly have
mentioned it so slightly the Letter must therefore be taken to
relate to the subject Matter upon which it was written viz an
Accot. of some Transactions between them that Year And this
can never be taken as a Rel. of the Bond either in Law or Equity.
There being therefore really no Equity in the Bill there is
likewise a Demurrer to it for that Cause for
1. Admitting there were really Services performed this Court
cannot assess Damages for those Services nor give the Pit. a
Recompence for them The proper & natural Remedy is an
BARRADALL'S REPORTS B185
Action at Law where a Jury will give as much as he reasonably
deserved It is a known & settled Rule that a Court of Equity
cannot assess Damages Nor give Relief where the Pit. can have
Remedy at Law Now this Judgm't upon the Bond will be no
Bar to the Pits, recovering at Law for his Services And therefore
this Pretence can be no Reason for impeaching this Judgment.
2. The ne^^t Pretence is that the Deft, did not perform the
Articles of Apprenticeship but I would fain know what the Pit.
has to do with that These Articles are between the Deft.
Lutwidge [ 173] & Triplet And Triplet is intitled to a Recompence
for the Breach of them if any be But suppose the Pit. was [sic]
what can a Court of Equity do To decree a Performance of
them is impossible Nor can they assess Damages for the Breach
And I suppose it will not be thought reasonable the whole Ap-
prentice-fee should be lost because some particular Part of the
Articles was not performed The Remedy therefore here must
be at Law to recover Damages for the Breach
3. The last Pretence is certainly the strangest in the World
It is a Promise made by an Infant which for anything that is
pretended Lutwidge was an entire Stranger to Can that then
be a Reason that he should not recover at Law because a third
Person for whom the Mony was advanced promised to repay
it Besides this Promise made by an Infant is ipso facto void
Nor did Equity ever enforce the Performance of such a Promise
And as to Triplets recoving his whole Estate without allowing
for this Tob'o it is nothing to Lutwidge who really gave a valuable
Cons, for this Bond according to the Pits, own Shewing viz. by
taking Triplet Apprentice
And so I hope it is evident there is no Equity in the Pits. Bill
I therefore pray that the County Courts Order may be reversed
that the Injunction may be dissolved And the Pit. have the
Effect of his Judgment at Law.
Vide I. Vern. 176. & 316. where Equity refused to relieve after
a Judgment at Law
Field a Cocke
This is an Action upon the Case for an Escape upon mesn
Process A Verdict is found for the Pit. but this Point was
reserved to be argued whether Pitchford the Prisoner who
escaped was so delivered by Winn the old Sherif (in whose
B186 VIRGINIA COLONIAL DECISIONS
Time he was first committed) to the Deft, the now Sherif as to
make the Deft, chargeable for this Escape
The Case is thus the Day the Deft, was sworn Winn the old
Sherif brought the keys of the Prison into the Court House
where the Deft, was & laid them upon the Table sajdng there
were two Prisoners in Goal Upon which the Deft took up the
Keys Pitchford was one of these Prisoners & remained in
Goal 61 Days afterwards during w'ch Time he was fed by the
Defts. Order till he broke Prison
It is clear from these Circumstances the Deft, had Pitchford
[174] in his Custody at the Pits. Suit But it will be objected I
suppose that the old Sherif ought to have delivered him over to
the Deft, by Indenture Without which in Judgment of Law the
Prisoner is not in Custody of the now Sherif And
I agree this is a formal Circumstance required by Law in some
Cases that is where Prisoners are in Execution I call it a formal
Circumstance because it seems to have no Foundation in natural
Justice for if the Prisoner b^ really delivered & the new Sherif
has him in Custody & knows for what Cause There can be nothing
sayed why in Reason he ought not to be chargeable for his Escape
as much as if he was delivered over by Indenture However I
must allow this Ceremony is made necessary by our Law but
then it is only as I sayed where Prisoners are in Exon
I must own upon the best Search & Enquiry I have been able
to make I do not find any Case where it is expressly & in Point
resolved that Prisoners not in Exon need not be turned over
by Indenture But there are sevl Cases where by necessary
Inference I conceive the Law must be taken to be so And the
Reason why we do not find it expressly resolved may be because
it is a well known settled Point & so has never been brought in
Question
Sr. Thomas Reeds Case 2. Ro. 116 who was indicted lor suffer-
ing a Prisoner attainted of Felony to escape An Exception was
taken to the Indictment that it did not appear he had the Custody
of the Prisoner by Indenture & then he ought not to be charged
for his Escape But it was held if the Sherif took upon him the
Custody of the Prisoner without Delivery by Indre & suffer him
to escape he may be indicted because it is the Suit of the King
the Case says This is an Instance where a Sherif may be
chargeable for an Escape tho' the Prisoner be not delivered by
Indenture and proves that Circumstance is not always necessary
BARRADALL'S REPORTS B187
King ag't Sir Eusebie Andrews Cro. Jac. 380. One Burdet
was arrested upon a Latitat at the Pits. Suit by Sir John Iseham
the old Sherif & by him in exitu ab officio left in Prison & de-
livered to the Deft, who suffered him to escape And without
Argument it was adjudged for the Pit. Here was no Delivery
by Indre the Prisoner was only left in Prison The Case is some-
what obscurely reported and the Manner of Delivery does not
seem to be directly brought in Question but' we may presume
it would have been insisted on if a Delivery by Indre had been
necessary And the Decision of the Case without Argument
makes the Inference very strong that the Law was clear & settled
in every Point that could be insisted on Vide Dalt. 16. Notice
by Word if accepted suffic't
Mr. Dalton in his Office of Sherif & all other Authors I have
read on this Subject say the old Sherif must assign over by
Indenture all Writs not executed by him & the Bodies of Pris-
oners in Exon Now if Prisoners not in Exon were also to be
so assigned the Distinction would be useless & we should be told
[175] that all the Prisoners in the Prison must be so assigned
All the Cases I have ever read upon this Subject are where the
Prisoners were in Exon which I think is a pretty Strong Argu-
ment on my Side since it is reasonable to suppose there have
been Instances enough of Prison'rs not in Exon turned over
from one Sherif to another that have afterwards escaped And
consequently this Point would have come in Question if it had
not been clear & settled as I sayed If there is no judicial Reso-
lution and I am pretty sure there is not nor any Author who
expressly says a Delivery by Indre is necessary where Prisoners
are not in Exon since it must be allowed to be only a meer Piece
of Ceremony I hope it will be carried no further than the Cases
carry it
Another Argument I draw from the Form of the Indenture
from one Sherif to another which we find in the Books Dalt. 13.
In which there is no Mention made of any but Prisoners in Exon
Now if it was usual or necessary to assign those not in Exon we
should certainly find the Form & Manner how they should be
recited in the Indre as well as those in Exon An Argum't from
Precedents is very frequent in our Books & Sr. E. Coke says is
of great weight in the Law and will be so much the greater in
this Case as the Precedents are consistent with what all the Au-
thors who treat on this Subject say they speaking only of Prison-
B188 VIRGINIA COLONIAL DECISIONS
ers in Exon which would be a needless Distinction as I have
observed if all Prisoners were in the same Predicament as to
this Matter
It may be difficult to assign a Reason why the Ceremony is
requisite in one Case more than the other but it is as difficult
to give a solid Reason why it is requisite at all The principal
one given in the Books is because the new Sherif without Notice
what Prisoners are in Goal & for what Cause will not know
whether it be lawful for him to detain them or when he may
discharge them. But if he has such Notice without Indenture
the End & Intention of the Law in requiring an Indre is answered
And yet it is certain the new Sherif is not chargeable for Prisoners
in Exon unless they are assigned by Indre to him All that can
be sayed is that it is a meer formal Circumstance that has ob-
tained its Force from long Usage & Custom And being nothing
more than a Piece of Ceremony ought not to be carried further
than to those Cases where the Law is clear & express And I
am sure it is not so in this Case but the contrary may be rather
inferred If then this Case is to be determined upon the Reason
of the thing & the Principles of Natural Justice Since one of the
Sherifs must be liable to the Pits. Action I shall submit whether
the old Sherif who was in no Fault having given the Deft, suffic't
Notice Or the Deft, the now Sherif who actually had the Prisoner
in Custody a long time & then suffered him to escape ought
to be chargeable
On the other Side were cited Dalt. Edit. 514. 3. Rep. 71.
[176] Westbies Case Pop. 85. S. C. 1. Sid. 335. Hanmer a Warner
& Keb. 224. S. C. & 1. Sal. 272. Watson a Sutton. And insisted
there was no Difference whether the Prisoner was in Execution
or not that an Assignment by Indenture was necessary in all
Cases And so was the Opinion of the whole Court
Note. Sev'l were of Opinion the Action would not lie ag*t
either Sherif unless it appeared that the Escape was thro' the
Sherifs Negligence.
APRIL COURT MDCCXXXVI
IvEY ag't Fitzgerald App'l from Nansent'd
The Case upon the Verdict is Morris Fitzgerald seised in Fee
of 100 Acres of Land died so seised intestate & without Issue
BARRADALL'S REPORTS B189
After his Death Henry Fitzgerald his Brother of the half Blood
entered & died seised & the Premises decended to his Daughter
the Deft. The Lessor of the Pit. is Son & Heir of Tho's Ivey
who was Uncle a parte materna to Morris Fitzgerald But is
not found that either the Lessor of the Pit. is or his Father was
Heir at Law of Morris Fitzgerald
Upon this Verdict I conceive the Pit. cannot have a Judgment
no Title appearing in his Lessor It is only found he is Son of
the Uncle a parte materna but not that he is Heir at Law &
unless he is so he has no Title If it should be argued that it
ought to be presumed he is Heir I conceive the Court are to
judge upon the Verdict as it is found & cannot add to or diminish
from it Especially here in the Case of an Appeal the Court are
to judge upon the Record Besides there is no great Reason to
presume the Lessor is Heir from any Nearness of Relation it
being very remote with Respect to the Succession in this Case
for not only Brothers & Sisters of the whole Blood but the most
distant Relation on the Fathers Side* have a Right to succeed
before him And perhaps there may be many such & then he is
not Heir in Verity But admitting he should be so in Fact as
it is not found the Court cannot intend it If it be considered
how absurd it must appear to Posterity that a Man should have
Judgment to recover Land without having any Title I hope
no more need be sayed Only this that the Consequence will be
only paying the Costs of this Suit the Pit. may bring another
Action.
Admitting the Lessor is Heir his Entry is taken away and
[177] so he cannot bring Ejectment but must resort to another
Action to recover if he has any Title. The Case as to this Point
is thus
Morris Fitzgerald dies seised the Defts. father (a Stranger)
enters & dies seised the Premisses descend to the Deft, his
Daughter & Heir The Defts. Father in this Case was an Abator
The Difference betw. an Abator & Disseisor is this An Abator
is one who between the Death of the Ancestor & Entry of the
Heir interposes & enters Such an Entry is called an Entry by
Abatement a Disseisor is one who wronfully puts out another
that is actually seised The Defts. Father in this Case after the
Death of M. Fitzgerald entring before the Entry of his Heir
was as I sayed an Abator This Entry of the Defts. fath'r was
undoubtedly a tortious Act & the Heir of M. Fitzgerald might
B190 VIRGINIA COLONIAL DECISIONS
at any Time have enter'd upon him during his Life but neglecting
to do that and the Defts. Father dying, seised whereby the
Freehold & Inheritance was cast upon the Deft, by Act in Law
i.e. by Descent this Descent takes away the Entry of the Heir
And he is put to his Action which in this Case if the Lessor is
Heir must be a Writ of Cosinage. This is the express Doctrine of
Littleton s. 385. in the Case of a Disseisin And Coke in his Com-
ment 237. b. says there is the like Law of an Abatem't ox In-
trusion This was a Law introduced in Favour of Descents
which are of high Estimation in Law & looked upon as the
worthiest Means of coming to Lands In Respect whereof the
Heir has divers Privileges and particularly this that he shall
not be subject to be ousted by the Entry of anyone claiming
Title but the Person so claiming is put to his Action The Reason
given is because the Heir cannot by Intendment of Law suddenly
know the true State of his Title It is an Institution of great
Antiquity & so known & settled a Point I presume it will not
bear any Sort of Contest
There is a Statute that perhaps may be objected 32. H. 8. 33.
which enacts that in Case ,of Disseisin the Entry shall not be
taken away by a Descent to the Heir of the Disseisor unless such
Disseisor had five Years quiet Possession before his Death And
in this Case it does not appear the Defts. Father was so long in
quiet Possession And it is true it does not appear so upon the
Verdict tho' the Fact I am told is so Now I might with as
much Reason argue that this Fact ought to be presumed as the
Pit. does that it ought to be presumed he is Heir but I shall
make Use of no such Argument My Answer to the Objection is
that the Statute does not extend to an Abatement as I have
shewn our Case to be It speaks only of Disseisins And because
it is in some Sort penal as it takes away a Privilege the Heir had
at the Common Law the Statute is restrained to the express
Words and is not taken by Equity or extended to any Case not
within the Words Cokes Authority is [178] express 1. Inst. 238.
a. that the Statute does not extend to an Abator or Intruder.
So it is sayed in PI. 47. a. Winbish ag't Talbois Neither does it
extend to the Feoffee or Donee of a Disseisor 1. Inst. 401. a.
Note 65. but is restrained to the single Case mentioned in the
Statute of a Disseisor dying seised This Statute then cannot
affect this Case the Defts. Father being an Abator as I have
shewed At the Common Law such a descent as in this Case
BARRAD ALL'S REPORTS B191
takes away Entry And consequently the Pits. Lessor could not
bring an Ejectment but must resort to his real Action if he has
any Title I pray the Judgment may be affirmed
Randolph for the Appellant (Pit.) sayed it must be intended
the Pit. is Heir tho* not expressly found it appearing he is
Cousin & the Deft, not setting up any Title as Heir nor shewing
any other Person to be so which Point he sayed was adjudged
in Cro. [sic.] .
(Qucere)
As to the Descent taking away the Entry of the Pit. he sayed
no Advantage could be taken of that Matter upon this Verdict
because all the Matter relating to it was not found That the
Pit. might be under Age or other Disability & then the Descent
would not take away his Entry He compared it to the Act of
Limitation Of which he sayed no Man could take Advantage
upon a Special Verdict unless the Verdict found that the Person
to be bar'd was under no disability and that it was incumbent
upon those who would take Advantage of the Act to shew that
Matter for which he cited L Lutw. 804. Whally ag't Read & Hall
To which last Matter it was answered that it was true the
Descent would not take away the Pits. Entry if he was under
DisabiHty but that not appearing ought not to be intended
That it was a Rule a Disability should never be presumed See
Plo. 176 The Parallel between a Descent that tolls Entry &
the Act of Limitation was very just but the Law was quite other-
wise than had been stated The Words of the Act of Limitation
are ** No Entry shall be made within 20 Years &c.'' Therefore
a Possession of 20 Years prima facie must be a Bar in Ejectment
If the Pit. will avoid the Bar he must shew he is within the
Saving of the Act If the Act be pleaded to a Formedon the
Ten't only says the Pit. did not prosecute his Writ within 20
Years after the Cause of Action accrued And this is certainly a
good Bar unless the Pit. by Way of Replication shew something
to avoid it The Pleading is the same in personal Actions By
Parity of Reason the Law must be the same upon a Special
Verdict [179] The Deft, is only to shew his Possession to the
Jury And it is sufficient for him if they find that Certainly it is
the Pits. Business to shew his Disability if there is any in the Case
& not the Deft, to shew he was under no Disability which being
a Negative might be difficult perhaps impossible for him to
prove to the Satisfaction of a Jury The Law is the same in
B192 VIRGINIA COLONIAL DECISIONS
Case of a Fine with Proclamations which is certainly a good Bar
unless something is shewn on the other Side to prevent it Plow
176. Whally & Reed if rightly understood makes nothing ag*t
this Argument The Court ^ayed no Advantage was to be taken
of the Act of Limitation in Regard all the Matter touching it
was not found From whence I collect that the Point of Limitation
(which it appears was not the principal Point in Question) was
not intended to be insisted on at the finding of the Verdict and
so the Facts concerning it were not offered to the Jury The
Judges knowing this declared no Advantage should be taken of
it Because indeed it was a Sort of Trick
Judgment for the Appellant (Pit.) April 1736.
Note my Argument about the Descent seemed to be little
understood
It was new to the Court as it seemeth
Rose Extor Bagg ag't Cooke & al.
Debt on Bond ag't the Heir & Devisees of John Cooke The
Defts plead 3 of them are under Age & pray the Parol may de-
mur to which Plea the Pit. demurs And the Question is whether
the Defts. ought to have their Age or not
This Action lay not at the Common Law but is given by the
Statutes 3 & 4. W. & M. 13. & the 6. Geo. 2. the first enforced
here by Act 12. Geo. 1. 3. Before the making of which if a Man
devised his Land by Will & died indebted his Cred'rs had no
Remedy ag't the Land but now an Action is given by that
Statute against the Heir & Devisee jointly
I must observe the Defts in their Plea don't alledge any other
Title to the Land than as Devisees or that the Deft, the Heir has
any Land by Descent Therefore I could not counterplead as I
must have done if they had sayed in their Plea the Lands de-
scended but I have demurred Conceving the Law to be very
clear that upon this Plea and as the Truth of this Case is the
Defts. ought not to have their Age
I must first beg Leave to premise that wherever a Man takes
an Estate from his Ancestor or any other he must take it by
Descent or by Purchase By Descent when the Law casts the
Inheritance upon him without any Act of his Ancestor By
Purchase when the Estate is [180] given him by Deed or Will
or however otherwise he comes to it if it be not by Descent Lit.
BARRADALL'S REPORTS B193
s. 12. The Defts. here are not in by Descent None but the Heir
could be so Therefore they must be in by Purchase The
Truth is an Estate-tail is devised to the Heir by the Will And
wherever the Heir has another Estate given him than he would
have by the Law he is a Purchasor All this is so clear it cannot
be disputed It is indeed admitted by the Plea the Defts. not
alledging any other Title than under the Devise And conse-
quently they must be in by Purchase
Now as to the Matter of Age prier [sic] by which if it is granted
the Suit is to be suspended till the full Age of the Defts. it is
an ancient Privilege of the Common Law introduced in Favour
of Infants upon a Presumption that they have not Understanding
to know their Estate or to maintain or defend their Right And
therefore the Law will not hazard a Trial by which they may be
forever bar'd of their Inheritance till their full Age This
Privilege is peculiar to the Law of England The Civil Law is
otherwise Indeed the Guardian by that Law has a much greater
Power than by our Law he can even alien a Minors Estate in
some Cases. 3. Bui. 143. 1. Domat. 166. 167.
At the Common Law in many real Actions where an Infant
was Demandant and in all except a very few where he was
Tenant he had his Age if he was in by Descent And the Court
ex Officio ought to grant it & not suffer the Infant to plead if he
would And if a Judgment was had ag't him by Default it was
Error & is so still where he ought to have his Age 2. Danv. Error
98. However Age is now taken away by Statute in sev'l Actions
6. Rep. 4. b. Markats Case I agree that in Actions of Debt ag't
the Heir the Deft, had his Age at the Common Law and so he
has still because he can not be charged as Heir unless he is in by
Descent but where he has some Land by purchase & some by
Descent he shall answer as to that he has by Purchase & shall
not have his Age 1. Danv. 263. 3. Now it may be sayed that as
Devisees are made liable by the Statute in the same Manner that
Heirs are at the Common Law They too ought to have their
Age as the Heir would But I conceive not because the Devisees
are in by Purchase & not by Descent And where the Heir is
in by Purchase he has not his Age as I have sayed Indeed it
is a clear & settled Point of Law & was never yet disputed that
where an Infant is in by Purchase he shall not have his Age The
old Books are full of this Doctrine but real Actions having been
much disused fot above 100 years past we find little upon this
B194 VIRGINIA COLONIAL DECISIONS
Subject in the later Authorities RoUe has collected most of the
Cases out of the year Books 3. H. 6. 46. is a Case in Point for
there was a Devise to the Heir in tail And adjudged that as he
was not in by [181] Descent but by the Will & so by Purchase
he should not have his Age See 1. Danv. 263. 13. this Case
abridged and read to pag. 1. And. 21. Waller ag't Lamb the Deft
denied his Age because in [sic] as an Occupant & so quasi a
Purchasor & not by Descent Carter 88. arguendo an Infant
shall not have his Age where he is in by Purchase In Terms
of the Law Age prier is defined to be where an Action is brought
ag*t an Infant for Lands he has by Descent there he must shew
this Matter to the Court & pray that the Plea may stay And in
praying Age the Ten't or Deft, always alledges he is in by De-
scent as appears by the Precedents old Bast. 26. Fitz. Age 15.
58. 22. 105. From which the Inference would be strong if there
were no express Authorities that unless the Deft, is in by Descent
he shall not have his Age But there are express Authorities &
therefore it will not admit of a Dispute Another strong Argu-
ment may be drawn from the Silence of the Books & Reports
since the making of the Stat 3 & 4. W. & M. upon this Subject
We have not one Case and in a Course of 40 Years it is impossible
but it must frequently have have happened that Infants Devisees
have been sued upon this Statute Yet there is no Instance that
ever they praied their Age which I think is a strong Proof that
they are not intitled to it And because it is a clear & settled
Point it has never been brought in Question
As to the Reasons why the Law allows this Privilege in Case
of Descents only & not where an Infant is in by Purchase I pre-
sume they may be these When an Infant comes to an Estate
by Descent the Law casts the Inheritance upon him & he cannot
by Intendment suddenly know the true State of his Estate in
Respect of that Want of Knowledge the Law adjudges in him
But when he is in by Purchase which in Judgment of Law is
his own Act the Presumption of his Incapacity to know his
Estate must cease The Law too is favourable to Descents as
the worthiest Means of coming to an Estate And therefore
divers Privileges are annexed to it A Descent in many Cases
will take away the Entry of him that has Right Many other
Instances there are of these Privileges annexed to Descents
But whatever the Reasons may be the Law is so clear and express
I apprehend it cannot be receded from in a judicial Determination
BARRADALL'S REPORTS B195
Fr tot cur the Defts. shall not have their Age. Apr. 1736.
Note the Court seemed to think if the Heir had any Lands
by Descent he ought to have shewed it in his Plea And then
as to that the Parol ought to demur but not for the whole
The Devisees in that Case ought to answer & the Heir too
as to the Land devised. See 1. Danv. 263. 3. So was Sir John
Randolphs Opinion as I took it
To the Argument above may be added that the Statute has
no [182] Saving to Infants till they come of Age And there is
no Reason to presume the Makers intended them that Privilege
The Design & Policy of the Act was to give Creditors an ample
Remedy to recover their Debts And consistently with that
Design the Act must be construed the most extensively &
beneficially for them The Statute does in some Sort devest
the Lands out of the Devisees & vest it in the Cred*rs
Infants are bound as well as others by Acts of Parl't unless
there is a saving Clause Or else why are such saving Clauses
added Here is no saving Clause in the Statute Ergo their Right
is bound as well as others
N B. When the Ten't in a real Action prays his Age he pleads
by his Guardian that his Ancestor died seised & the Tenem'ts
descended to him &c. Vid. my Rast. Ent. 26. Tit. Age 16.
Which proves if he was in by Purchase he co'd not have his
Age Vid. supra Post 213.
B URGES a Hack
David Fox seised in Fee of the Premises in Question devises
the same to his Son William & Daughter Elizabeth ** To have &
** to hold to my said son & dau'r their heirs & Assigns forever
** to be equally divided between them at their respective ages
** of 21. years or Day of Marriage of my said daughter which
" shall first happen And in Case of the Mortahty of either of
** them before they shal accomplish their respective Ages or
** the Day of Marriage of my said Daughter or without issue
** of their Bodies lawfully begotten Then I give the whole to
*' the Survivor And in Case both die before they do accomplish
" their respective Ages or without Issue of their or one of their
** Bodies lawfully begotten Then I give & bequeath the sd.
" Plantation to the right Heirs of me the sd. David Fox forever."
The sd. W'm & Eliz after the Death of the Testator entered &
B196 VIRGINIA COLONIAL DECISIONS
were seised And Wm died before 21. or the Man*, of Eliz &
without Issue Eliz married Peter Hack & had Issue by him
Nicholas her only Child who is dead without Issue & by his
Will devised the Premes to the Deft. The Lessor of the Pit.
is the Testors Heir [183] at Law viz the Grandaughter of
David his eldest Son
The Question is Whether Eliz the surviving Devisee took an
Estate-tail or a Fee-Simple contingent by the Will of the sd.
David Fox If the first the Estate-tail is spent by the Death of
Nicholas her Son without Issue And then the Lessor as the
Testors Heir at Law has a good Title to the Reversion not by
Force of the Limitation to the right Heirs for that is void in
Point of Limitation but by Descent If Eliz took a Fee simple
the Defts. have a good Title
The Solution of this Point depends upon the Construction of
the Will I shall therefore propose the Consideration of the follow-
ing Particulars as necessary & conducive to point out & shew
the Testators Meaning the Law & Rule for Construction of Wills
1. What Estate the Devisees took by the first Part of the Devise
'* To have & to hold to my said Son & Daughter their Heirs
'* and Assigns forever &c." 2. How the Estate created by those
Words is qualified by the succeeding Clause ** And in Case of
the Mortality of either of them " &c. 3. What Estate the Sur-
vivor took by those Words *' Then I give the whole to the Sur-
vivor." 4. How that Estate is enlarged or qualified by what
follows "And in Case both die &c.
1. By the first Part of this Devise an absolute Estate in Fee
would have vested in the Devisees without all Question But then
2. this Estate is qualified by the subsequent Words In Case
of the Mortality &c. And I humbly conceive make it an Estate
tail with cross Rem'r This is what I shall endeavour to demon-
strate as well from the Words of the Will as the plain & apparent
Intention of the Testator
I beg leave to premise that the Word Issue in a Will is equal
to & of the same Import with Heirs of the Body This I pre-
sume will not be denied being a known & settled Point Now a
Devise to one & his Heirs And if he die without Heirs of his Body
Rem*r over is clearly an Estate-tail for tho* the first Words to
him & his Heirs carry a Fee simple the subsequent Clause if he
die without Heirs of his Body shew what Heirs were intended
in the first Part of the Devise viz Heirs of the Body The Law
BARRADALL'S REPORTS B197
is the same if the Limitation be upon a dying without Issue be-
cause as I sayed the Word Issue in a Will is of the same Force
with Heirs of the Body The Authorities in Law as to this Point
are very plentiful 1. Ro. A. 835. 1. 836. 7. 9. 839. 3. 4. Cro. Jac.
448. 695. Ro. 29. 1. Vem. 227. 229. 3. Mod. 106. 9. Rep. 128.
Skin. 17. Raym. 425. Skin. 559. FitzG. 12. 25.
This is the Case of the first Part of our Devise which is to W'm
& Eliz. & their Heirs And in Case of the Mortality of either of
them before 21. &c. Or without Issue the whole to the Survivor.
The Limitation over upon a dying without Issue makes an
Estate [184] tail according to the Cases cited tho' by the first
Words a Fee Simple passed for the Word Issue in the 2 Part of
the Clause shews what Heirs were intended in the 1. Part viz.
Heirs of the body
The Word Heirs in a Will without any Thing more is often
taken to be Heirs of the Body where the Testators Intention is
apparently so. A. having 2 Sons devises his Land to the youngest
& his Heirs And if he die without Heirs then to the eldest
This was adjudged an Estate tail in the youngest for Heirs here
must necessarily be intended Heirs of the Body Otherwise the
Rem'r over would be fruitless because the elder Brother was
Heir general & would have taken as such without the RemV
1. Ro. A. 836. 5. 6. 2. Cro. 415. Webb a Herring 1. Sal. 233.
Indeed it is a Kind of established Rule Where Lands are de-
vised to one & his Heirs And if he dies without Heirs Rem*r
over to another who is Heir gen*l to the 1. Devisee that it is an
Estate tail in the 1. Devisee for in such Case Heirs must be in-
tended Heirs of the Body for the Reasons just now mentioned
3. Lev. 70. Br. 84. 2. Cro. 448. 1. Lut. 810. 813.
Now this is exactly our Case the Testator had only two Children
W'm & Eliz. The Devisees by one Venter so each was Heir
general to the other And the Rem*r being limited to the Survivor
According to the Rule in the Cases just cited Heirs in the first
Part of the Devise must be intended Heirs of the Body without
the Assistance of the succeeding Clause But when in that
the Rem*r is limited upon a dying without Issue It seems
to put the Matter beyond Dispute that Heirs in the first Part
was intended Heirs of the Body Consequently that the Devisees
took an Estate tail & nothing more Vid. Mo. 637.
There is a Difference and I suppose it will be insisted on on
the other Side where a Rem*r is limited upon a dying without
B198 VIRGINIA COLONIAL DECISIONS
Issue generally & where it is to depend upon some contingent
Circumstance as dying without Issue in the Life of another or
within such Age In which Cases no Estate tail is created but
only a Fee Simple contingent as are the Cases of Pell & Brown
Cro. Ja. 590. 1. Ro. A.835 2. S.C. &4. Hard. 148. Hall & Deering.
1. Sid. 148. CoUenson ag't Wright And this Difference I admit
but conceive it is not our Case for here the dying without Issue
stands by itself & is not coupled with the Contingencies of
dying within Age or before the Dau'rs Marriage but separate
from them by the disjunctive Or If it had been In Case either
of them die within Age and without Issue There perhaps it
would be within the Distinction but here the Sentences are dis-
joined & must be [185] taken distributively and then the dying
without Issue has no Relation to or Dependance upon those
Contingencies This cannot be thought meerly a Cavil about
Words but the Particles make really a great Difference in the
Sense for Instance if I promise to build a House & give 500;^
I must do both but if the promise is to build a House or pay
500;^ The doing of either will discharge the Promise And this
Distinction I insist on in the Case at Bar is not of my own In-
vention but we find it taken in the Books
Soulle & Gerrard Cro. El. 525. is a Case in Point which is a
Devise to one & his Heirs And if he die within Age or without
Issue Rem'r over the Devisee had Issue & died within Age the
Question is between the RemV man & the Issue & adjudged
for the Issue And it is there sayed to be an Estate tail And so
it must be in Consequence of that Judgment
This Case is exactly ours And I am much mistaken if there
is any Authority to contradict it or any Book where the Case
is denied to be Law I know very well many Cases may be
shewn where the Limitation over is upon a dying within Age &
without Issue that it has been adjudged a Fee Simp e con-
tingent but that is not the Case here And upon the Distinction
I have taken I conceive all the Books may be reconciled.
There is a Case in Poll. 645. Price ag't Hunt that I suppose
will be much relied on on the other Side The Case is a devise
to a Son & his Heirs And if he die before he attain to 21. or have
Issue of his Body living Rem'r over to Francis Cowley The
Son lived to 28. & then died without Issue The Question is
between Cowley the Rem'r man & the Heir of the Son Not
whether it was an Estate tail in the Son as indeed it was not
BARRADALL'S REPORTS B199
but whether the Rem'r could take Effect One of the Con-
tingencies upon which it was limitted having happened viz the
Sons attaining 21 And adjudged it should not
Now the Difference between this Case & ours, is very obvious
the Rem'r there is to commence upon the Sons dying without
Issue living which is certainly a Contingency & differs very
much from a Limitation upon a d)ring without Issue generally
as our Case is I have already taken this Difference & allowed
that where the dying without Issue is attended or coupled with
any contingent Circumstance there it makes no Estate tail
but is a Fee simple contingent But in our Case the dying without
Issue stands singly & is disjoined from the Contingencies of dying
before Age or Marriage
This Case then of Price & Hunt proves no more than this
that where a Rem'r is limitted to Commence upon 2 Contingencies
in the Disjunctive If either of them happen the Rem'r cannot
take Effect w*ch I shall readily grant but conceive it is nothing
to this Purpose
[186] Besides to construe this a contingent Fee will be to
make the Rem'r to the Survivor vain & idle for then in that Case
the Use of such a Rem'r must be to prevent the Estate from
going to the Heir of the 1. Devisee in Case he sho'd die before 21.
or without Issue but it can never be supposed the Testor had any
such Intent in this Case because he has limitted the Rem'r to
that very Person who was & would have been Heir to the Devisee
in Case he died before 21 or without Issue And so if this is con-
strued a contingent Fee the Rem'r must be useless Certainly
then this was not his Intent but his Intention in limitting this
Rem'r was to exclude his own Heir from taking upon the Deter-
mination of the Estate given to the 1. Devisee as he would have
done upon the Death of the Devisee without Issue in Case this
Rem'r had not been The Inference from this is clear he did not
intend a contingent Fee but an Estate tail 1 . Sal. 233. 1 . Ro. A. 836.
It is a Rule in the Construction of Wills that such Construction
should be made as will make the whole Will consistent But to
construe this a contingent Fee is inconsistent with the Rem'r
over as this Case is Therefore it must be an Estate tail
The Construction I contend for is not only supported by the
Words of the Will but by the clear Intention of the Testator
as I conceive He certainly intended the Rem'r should take
Effect whenever there was a Failure of Issue & not only upon
B200 VIRGINIA COLONIAL DECISIONS
the Contingency of dying without Issue within Age &c. as I
hope is in some Measure evident from what has been sayed but
will appear still more clearly if we consider the latter Part of the
Devise Upon which the present Question properly depends
The Words are '* Then I give the whole to the Survivor And in
" Case both die before they do accomplish their respective
** Ages or without Issue of their or one of their Bodies lawfully
** begotten Then I give & bequeath the said Plantation to the
" right Heirs of me the sd. David Fox "
The first Words " Then I give the whole to the Survivor "
carry no Estate of Inheritance but the Surviv'r by Force of those
Words without more would have only an Estate for Life in a
Moiety 1. Ro. A. 835. 836. We must of Necessity have Recourse
to the latter Part of the Clause to make it a greater Estate And
by -that indeed it is clear he intended an Estate of Inheritance
and what kind of Inheritance the Word Issue shews viz an
Estate tail There is no other Word in the whole Clause to carry
an Estate of Inheritance but that And therefore it must either
be an Estate for Life or an Estate tail But if it should be taken
as [187] an Estate for Life And the Words " In Case both die
without Issue &c." are taken as Words of Determination i.e.
to shew when the Estate given by the first Words should deter-
mine this Absurdity will follow that the Survivor had an Estate
for Life determinable upon his dying without Issue And it is
not to be supposed the Testator intended such an Absurdity
In Order therefore to satisfie the Words of the Will & make the
Testators Meaning consistent with Reason & good Sense the
Will must be construed as I would have it viz. that the Survivor
was to have an Estate tail in the whole Which I hope appears
clearly to be the Testators Intention If the Court is of another
Opinion Then I insist the Survivor had only an Estate for Life
in one Moiety And we as Heir at Law are well intitled to that
Moiety Q. & vide Skin. 339.
I will beg Leave to add one Case in Law which I believe will
not be denied If Lands are devised to a Man without saying
more And in Case he die without Issue Rem'r over this is clearly
an Estate tail I must submit whether that be not the Case here
The Survivor is to have the whole And in Case he die within
Age or without Issue Rem'r over
To conclude We are Heir at Law And if there is any Doubt
about the Construction of this Will such Construction should
BARRADALL'S REPORTS B201
be made as is most in our Favour The Law is favourable to the
Heir upon many Accounts Before the Stat. 31. H. 8. the An-
cestor could not devise away his Land from him And since that
Statute Devises that tend to deprive him of his Inheritance are
always construed as much in his Favour as may be It is indeed
a known & estabUshed Maxim that in doubtful Constructions the
Heir is to be favoured Wherefore if the Testors Intention was not
so evident as I hope it appears Judgment ought to be for the Pit.
Case of Barber & Timson in this Court ab't 20 Years Where
the Will was in the same Words & adjudged an Estate tail
Needier for the Deft, insisted much on the Word Assigns in
the first Part of the Devise which he sayed shewed the Testor
intended a Fee 2 Sal. 622. That if it should be construed an
Estate tail that Estate is determinable by the Death of the
Devisee before 21. And then it will follow that if the Devisee had
died before 21. & left Issue that Issue must be disinherited which
can never be thought the Testors Meaning Therefore (Or) here
must be taken for (and) & then it is clearly a contingent Fee
He cited 1. Ro. Abr. 835. 4. Henbtuy & Cockerell. Hard. 148.
Hall & Deering 1. Sid. 148. CoUenson & Wright but principally
reUed on Price & Hunt Poll. 645. Vid. 2. Vern. 86. 151. Skinn.
144. Pell & Brown Cro. Ja. 590.
[188] Apr. 1736.
Judgment for the Deft (viz. that it was a contingent Fee) by
the Opinion of
Tayloe Lightfoot
Randolph Carter
Custis Digges &
Grymes Byrd con.
Robinson
Blair &
The Governor
Needier Cont 15
That this is rightly adjudged See 2 Strange Barker v Siu^eties
Anderson qui-tam ag't Winston
Debt on the Act 3 & 4. Geo. 2. 12. ag't taking excessive Usury
The Pit. declares that the Deft, after the 29. Sept. 1730. viz
ulto July 1731 at &c. upon a certain Contract between the Deft.
& one John White made did receive of the said White by Way
of corrupt Bargain & Loan 3;^ Current for Gain Use Interest &
B202 VIRGINIA COLONIAL DECISIONS
giving Day of Paiment of 20;^ Curr't by the Deft, to the s*d
White lent over & besides the lawful Interest of 6 per Cent ag't
the Form of the Act of Assembly &c. And in another Action
declares in like Manner for taking 36. s. for Interest & giving
Day of Paiment of 12;^. In which Action the Jury find specially
That White some time in June 1730 borrowed of the Deft.
20jf Curr*t And in July 12jf more And gave separate Bonds
for Paim't of 20jf . & 12j^. Sterl. at the End of a Year In April
1732. White & the Deft, made a Settlement & for the first year
White was charged for principal Money on both Bonds S6£. 16s.
Curr't & in Oct'r fall White paid the sd. 36.16.— & Interest at 6.
per Cent from the respective Days of Paim't in the Bonds & the
Deft, received it And if the Court adjudge the Deft, guilty they
find him guilty of taking the said 4.16. — above six per Cent upon
the sd. Bonds
And I take it upon the Matter found the Deft, is not guilty of
any Breach of the said Act Before the making of which there
was no Law here that settled the Rate of Interest nor were Men
subject to any Penalty tho' they took 20 or even [189] 50 per
Cent. Now this Act provides **That no Person after the 29 —
* Sept. 1730 upon any Contract to be made after that Time for
* Loan of any Monies Wares &c. shall take above 6 p cent per
* Ann. for Forbearance And all Bonds &c. made after that
* Time where More is reserved shall be void And any Person
* who after the Time aforesaid upon any Contract to be made
* after the said 29. Sept. shall receive above 6. p Cent, shall
* forfeit double the Value of the Mony &c. lent &c.
It is plain this Act was intended to refer only to Contracts
made after the 29. Sept. 1730. The Penning of it is very strong
to exclude all Contracts made before After the 29. Sept. &
after the Time aforesaid is repeated no less than 4 Times Indeed
it would be very strange to subject Men to such severe Penalties
when they transgressed no Law then in being I suppose it
won't be pretended that any Bond taken before 29. Sept. 1730.
where more than 6. p. Cent :s reserved is void Then neither
can the receiving the Money upon such Bond subject the Obligee
to the Forfeiture of the double Value for it is receiving upon a
Contract made after 29. Sept. [sic] is made penal by this act
This I take to be very clear upon the Words of the Act as well
as evident from the Reason & Justice of the Thing And there-
fore it may be needless to mention the Authorities upon this
BARRADALUS REPORTS B203
head But as there are Cases directly in Point adjudged upon
the Statutes of Usury in England I will beg Leave to mention
2 or 3 Hawkins 1. P. C. 244. is express that a Contract made
before the Act 12. Ann. which reduces Interest to 5 p Cent is
not within that Statute But that it is lawful to receive 6 p.
Cent (the legal Interest before) upon such Contract See Dal.
13. Ray. 195.
But we need go no further than to the last Act ag't Usury 8.
G. 2. 5. to prove such Contracts are not within the first Act
upon which this Action is founded The Title of it is To make
void certain Contracts for paying excessive Usury It recites
that there were sev'l Contracts subsisting made before passing
of the 1. Act or between the Passing & Commencement And tho'
there was no Law in being to punish such unreasonable Lenders
Yet such Contracts which were always unrighteous ought not
to be binding It is therefore Enacted that all Bonds &c. made
before 29. Sept. 1730. where any Interest above 6 p Cent is agreed
to be paid shall be void as to all Interest above 6 p Cent.
Here is the Judgment of the Legislattire that Contracts made
before the 1. Act or between the Passing & Commencement are
not punishable by any Law And all the Punishment inflicted
[190] by this Act is only to make such Contracts as were then sub-
sisting void as to all Interest above 6. p Cent but there is no
Penalty for receiving the Money upon such Contracts If there
was the Deft, would not be within it the Matter for which this
Prosecution is set on Foot being transacted long before the
making of this Act & was not a Contract then subsisting
If then the Deft, did not take above 6. per Cent upon a Con-
tract made after the 29. Sept. 1730 I conceive he is not guilty
of the Breach of any Law And that there is nothing found in
this Verdict to prove he did is very clear In June & July 1730
he let White have 20;^. &12;^.Curr't & took his Bond for Pai-
ment of the like Sum Sterling at the End of a Year This I
hope was a Contract before the 29. Sept. 1730. It was lawful
then for the Deft, to receive the Money due upon these Bonds
I mean without being subject to any Penalty In April 1732.
White & the Deft, made a Settlement At this Time the Deft,
might lawfully receive the Sterling Money reserved on the
Bonds as I sayed and he might also lawfully receive 6 per Cent
Interest upon this Mony from the Time it ought to have been paid
And this is all he did do The Sterling Money is paid in Cash at
B204 VIRGINIA COLOxXIAL DECISIONS
15 p Cent the lowest Exch'a w'ch makes 36. 16. the Mony
reced upon this Settlem't tog'r with Interest upon it from the
Time it was paiable by the Bonds at 6 per cent.
If there is any Pretence of a Contract after the 29. Sept. 1730.
in all this it must be when this Settlement was made but upon
that he took no more than 6 per Cent And however unreason-
able it might be to take 15 per cent upon the first Contract which
was before the Law it is plain he has not taken more than is
allowed by the Law on any Contract since And therefore he is
not guilty of any Breach of the Act of Assembly Unless it is
construed that the receiving Mony after the 29. Sept. 1730.
upon a Contrp.ct before that Time where more than 6. per cent
is reserved is within the Act But I humbly conceive such a
Construction can never prevail Being ag't the express Words as
well as the Intention of the Act which as I have observed is
penned in the strongest Terms to exclude all Contracts before
It is against the Sense of the Legislature here since the making
of it as I have shewed from the 2 Act ag't Ustiry Against the
Rule of Construction in such Cases as appears from the Cases I
have read adjudged upon this Point in England Against the
private Sentiment as we may suppose of Sir J. R. who we all
know had the Penning of the 2. Act & was very active in pro-
moting it [191] And also ag't natural Justice to punish any Man
for an Action innocent in itself with respect to human Laws
by a Law made ex post facto Which kind of Laws have been
always condemned as unjust And therefore to make such a
Construction ol a Law against the express Words of it I appre-
hend can never be thought right
And I hope the Consequence of such a Determination will be
considered It must affect a great Number of People who
thought they might lawfully take more than 6 per Cent before
the Act & perhaps in Conscience might do so For with Defer-
ence to the learned Gentlemans Opinion I think some Men
under some Circumstances may as lawfully take 10 per Cent as
others may 5 I mean foro conscienticB & abstracted from positive
Laws And this most of the Writers of the Law of Nature agree
I own that Usury seems to have been always condemned by the
ancient Laws of England tho* an Usurer was only punishable
by Ecclesiastical Censures in his Life time But if it was found
by 12 Men after his Death that he died an Usurer he was com-
pared to a Thief His Goods were forfeited to the ICing & his
BARRADALL'S REPORTS B205
Lands escheated 3. Inst. 151. And as Usury was an Offence
punishable by the Law of the Church We frequently find it
sayed to be ag't the Law of God Not that it is prohibited by the
Gospel tho* it might be so by the Canons & Decrees of the Pope
which last in the Times of Superstition the artful Priest taught
the World to believe were as much the Law of God as the Gospel
itself But now Mankind are more enlightened and Protestants
at least allow nothing to be ag't the Law of God but what is
prohibited in Holy Writ 1. Hawk. 245.
As to the Prohibition in the Jewish Law that is not at all
obligatory upon Christians The Law of Moses was promulged
to a particular People and only binding upon them to whom
it w£is promulged It was not intended nor in [sic] any where
sayed to be an universal Law to Mankind And that it is not
binding upon Xtians that is the ritual & political Part of it
We have the Authority of the Church viz the 7th of the 39.
Articles It is true the moral Part is there sayed to be binding
And so it would be if it was not in the Law of Moses. The
moral Law being entirely & universally obligatory upon Mankind
But in Truth this Prohibition is not a general but a partial
Prohibition respecting the Jewish Nation only for they are
permitted to take Usury of a Stranger tho' not of one another
which is a plain Proof that Usury is not ag't the moral Law for
if it had [sic] the Jews who were the sanctified & chosen People
of God would never have been permitted the Practise of it at all.
Indeed it is impious to suppose that God would tolerate the
practise of a Thing simply [192] & naturally unlawful This
Prohibition then to the Jews was meerly political 1. To obviate
the avaritious Disposition observable in that People and to
prevent it from running out into Oppression of one another
And 2. thereby to cement them into a closer Bond of Amity to
each other 3. To secure & strengthen that Democratical Gov-
ernment Moses intended to institute by preserving some kind
of Equality in Property Upon which Principles the Laws of
Jubilee & ag't alienating Land for ever were also instituted It
must however be owned the primitive Xtians took no Usury
probably out of a Superstit ous Reverence to the Mosaic Law
which might be the first Occasion of its being condemned by
the Church tho' afterwards abused by the Clergy who made a
Market of that as well as other Offences by the Practise of
commuting for Penance.
B206 VIRGINIA COLONIAL DECISIONS
Whoever has a Mind to be further convinced that Usury is
not ag't natural Justice let him read Puffendorfs Law of Nature
B. 5. c. 7. s. 8. ad finem & Barbeyrack's Notes thereupon where
he may see it proved to a Demonstration that it is neither ag't
the Law of God nor of Nature but even necessary in the present
State of human Affairs & of great Use in all trading Coimtries
Grotius who seems to candemn the Name allows the Thing
He says L. 2. c. 12. there are some Things that look like Usury
but are Pacts of another Nature as the Amends that ought to
be made a Cred'r for the Loss he is at in being out of his Money
&c. which is allowing the very Thing contended for viz If I
lend Mony or Mony is owing to me I ought to have something
for the Use of my Mony & the Loss I sustain for Want of it
This is the very principle upon which Usury is proved to be
consistent with natural Justice It is no matter whether you
call it Usury or Interest Amends or Damages the Thing is the
same And certainly in the present State of human Affairs where
many Persons Estates consist all in Money And they cannot say
it would be inconvenient that they should employ it in Trade &
Husbandry No just Reason can be given why they should not
make a Profit of their Estate as well as those who have Lands
& rent them out Especially when their Money is as useful to the
Commonwealth for no considerable Trade could be carried on
without it
Usury was allowed by the Roman Law Puff. 276. Note 4. & is
practised in almost all civilized Nations at least in all Christen-
dom It is indeed prohibited by the Alcoran: but even [193] the
Professors of that Religion evade it by lending Money to have a
certain Share as a 4 or 5 Part of the Gain made by it which is the
same Thing for in Equity there is no Difference whether I agree
for a certain Gain before hand or run the Risque of an uncertain
one Puff. pag. 276.
As to the Quantum that may be taken for Usury according
to natural Justice Grotius ad Lucam 6. 35. proportions it not
by the Gain of the Borrower but the Loss that accrues to the
Lender & that so much ought to be paid by the Borrower as the
Lender in the Way of his Calling usually makes of his Money
Allowance being made for Hazard But because it would be
difficuit to prove & adjust this exactly And such a Latitude
would give an Opportunity to ill Men to insist upon too great
an Interest The Policy of most Nations has reduced it to a
BARRADALL'S REPORTS B207
certain Standard which is more or less according to the different
Circumstances of each State In trading Countries as in Hol-
land it is very low 2% or 3 per cent In Venice where there is
no Trade it is 8 per Cent And Interest is high in all the Inland
Parts of Germany The Rate of Interest in England has been
reduced from Time to Time as Mony has grown more plenty &
its Trade increased By the H. 8. It is prohibited to take more
than 10 per Cent under a Penalty This is the first Law that
made Usury cognizable in the Kings Court Thus it continued
til Ja. 1. when Interest was reduced to 8. After the Restora-
tion it was reduced to 6. & by the Ann to 5. In most of the
English Plantations I am told it is now at ten 12. was per-
mitted by the Roman Law till the Time of Justinian who re-
duced it to 8. Puff. 276. Note 4. Thus it varies in different
Countries & in the same Country according to the different
Circumstances of it
To conclude where the Rate of Interest is settled by Law in
any Country No good Man ought to take more tho' it was not
prohibited under a Penalty But where there is no Law the
Rule laid down by Grotius seems very equitable viz in Propor-
tion to the Loss that accrues to the Lender And therefore a
trading Person who usually makes a great Profit of his Money
may with good Conscience require more than one whose Money
lies dead upon his Hands From whence I would observe that
the taking more than 6 per cent before there was any Law by
some Men under some Circumstances was not so very criminal &
unrighteous as is pretended Yet I should be sorry to be
thought an Advocate for excessive Usury as it is certainly intro-
ductory of great Oppression & I am heartily glad it is settled by
Law All that I contend for is that a Man may not be punished
for any Contract of this Sort before there was any Law to make
it penal And I hope Judgment will be given for the Deft.
This Case was agreed by the Parties & so no Judgm't given
[194] APRIL COURT MDCCXXXIX
Richardson ag't Mountjoy App'l Richmond
In Trespass on a Special Verdict the Case is
Joseph Belfield & Mary his Wife seised in Fee in Right of
Mary by Deed Oct. 16. 1715. give & grant to Tho's Mountjoy
B208 VIRGINIA COLONIAL DECISIONS
oldest Son & Heir of Mary 1600 a of Land more or less the
remaining Part of a Tract of 2500 A. To hold the Plantation &
1000 A. adjoining in Fee tail & the remaining 600 Acres be the
same more or less in Fee
The said Mary Belfield & Tho's Moimtjoy by Lease & Rel.
2 & 3. Apr. 1717. in Cons, of 83;^. sell & convey to W*m Wood-
bridge 600 A. of Land Part of the sd. 1600 by certain Metes &
Bounds described in the Deeds with gen'l Warranty ag't them &
their Heirs
Mary at the Time of making these Deeds was a feme covert
but lived separate from her Husband And upon her Marriage
there were Articles that she should have Power to alien & dis-
pose of her Lands without her Husband which he permitted her
to do Upon a Survey it appears there are but 1000 Acres to
satisfie the whole 1600 including that conveied to Woodbridge
Mary Belfield died before Tho's Mountjoy who is also dead
without Issue The Pit. is Heir at Law to both W'm Wood-
b,ridge enter'd into the 600 Acres & died seised & after his Death
John Woodbridge his Son & Heir enter'd and the Deft, by his
Command dug the Soil which is the Trespass supposed And
if John Woodbridge has Title to the 600 A conveyed to his Father
Then pro quer. If not pro Def. The County Court were of
Opinion that Woodbridge had not a good Title & gave Judg-
ment for the Pit. But I conceive that Judgment is erroneous
I must observe the Pits. Title in this Case is as Heir to Mary
the Donor the Estate tail being determined by the Death of
Tho's Mountjoy the Donee without Issue And so he claims
1000 Acres in his Reversion The Defts. Title is under the
Purchase from Mary Belfield to Tho's Mountjoy
In this Case there are 4 Points to be considered 1. Whether
the Deed of a feme covert made alone & without her Husband
but by his Consent & in Ptirsuance of Articles before Marriage
will bind the feme & her Heirs And if so Then 2. Whether a
Reversion in Fee expectant upon the Determination of an
Estate tail may be conveied & will pass by Deeds of Lease &
Release 3. Admitting no Estate passed out of Mary Belfield by
the Lease & Release from her & Tho's Mountjoy Whether those
Deeds may not at least operate & be taken as an Explanation
of the first Grant from Belfield & his Wife to shew which was
[195] the Land intended to pass in Fee 4. Admitting the 600
Acres conveied to Woodbridge to be Part of the Land intailed
BARRADALL*S REPORTS B209
Whether the Warranty of Thomas the Ten't in Tail descending
upon the Pit. who is Heir to the Donor will not bar him
1. The Deed of a feme covert simply taken without all
Doubt is void. Bro. Faits enrolled 14. Cro. El. 700. Hob. 225.
But the Question is How far the Husbands License & Consent
will make it valid for the Rule is Modus et conventio Vincunt
legem Et pacto aliquid licitum est quod sine pacto nan admit-
titur
Here it will be proper to consider the Reason why the Deed of
a feme covert is void It is because the Law supposes she has
no Will of her own but is sub potestate viri Et cum in vita con-
tradicere non potest Hob. 225. So that it is a Law introduced
in Favour of Women to secure their Inheritance that they may
not be compelled by their Husbands to alien them ag't their Will
Let us now consider how far this Reason can influence the
present Case. Here is an Agreem't between Husband & Wife
upon Marriage whereby a Power is given the Wife for her Benefit
to alien the Land without the Husband which Power she executes
And to obviate the Objection that she did this thro' her Hus-
bands Influence it appears they lived separate & she was even
privately examined Thus the Reason why the Law adjudges
the Deeds of Femes covert void does not subsist in the present
Case Et cessante ratione legis cessat ipsa lex
In this Case the Husband could not controul the Wife in
making this Deed A Court of Equity would have compelled
him to perform the Articles if he had attempted it And there
do not want Instances in the Law where the Act & Deed of a
feme covert alone without her Husband is good & shall bind
her & her Heirs If a Fine be levied by her without her Husband
this shall bind if the Husband avoid it not during the Coverture
7. Rep. 8. Hob. 221. Husband & Wife levy a Fine of the Wifes
Land to Uses with a Proviso that they at any Time during their
Lives may make Leases the Wife during the Coverture made a
Lease & adjudged good by Virtue of the Proviso Godb. 327. It
is a known Rule that a feme covert cannot make a Will Yet if
the Husband upon the Marriage covenants that she may make
a Will Any Disposition in Pursuance of that Power will be good
tho' perhaps not strictly as a Will
The Inference to be drawn from these Cases is clearly this
that tho' the Act or Deed of a feme covert simply taken may
be void Yet the Consent of the Husband either tacit or express
B210 VIRGINIA COLONIAL DECISIONS
will make it good & binding upon her & her Heirs And there
is both these concurring in the present Case the express Consent
by the [196] Articles the tacit by not avoiding or endeavouring
to avoid the Deeds during the Coverture Therefore I hope they
are binding upon Mary Belfield & her Heirs And if so Then the
next Thing to be enquired is
2. Whether a Reversion expectant &c. can be conveied & will
pass by Deeds of Lease & Release And that such Reversion may
be conveied I beheve no Man will dispute 2. Rep. 51. a. Wiscots
Case Yel. 149. Sal. 233. Badger & Loyd. 6. Rep. 155. Neither
can there be any Question but it will pass by Lease & Rel. 2.
Lill. Abr. 483.
Before the Statute 27. H. 8. of Uses a Reversion would not
pass by Deed without Attornment but Attornment is not neces-
sary upon any Conveiance within that Statute and a Reversion
may well pass without it for the Statute transfers the Possession
to the Use 1. Inst. 309. b. Now a Lease & Rel. being a Convei-
ance within the Statute 2. Mod. 250. All the Estate of the
Grantors whether in Possession or Reversion was transferred &
did well pass to the Grantees The Title the Pit. sets up is by
Descent from Mary Belfield one of the Grantors which Descent
is broke & prevented by these Deeds And is a Bar to any such
Claim. But if these Deeds cannot operate so as to convey any
Estate from Mary Belfield Yet
3. It may be taken as an Explanation of the first Grant from
■
Belfield & his Wife to Mount joy to shew which were the Lands
intended to pass in Fee by the said first Grant The Premises in
that 1. Grant have no certain Description or Boundaries but in
general Terms 1600 Acres more or less the remaining Part of
such a Pat. It was supposed there was then so much of that Pat.
unsold and upon that Supposition 1000 A. are limitted in Tail
& 600 in Fee but no certain Boundaries to either Upon this
Grant it was reasonable to conclude the Grantee had 600 A.
in Fee So Woodbridge thought & in Order to be as secure
as possible & to take away all Objection that the Land he pur-
chsised was Part of the 1000 a. intailed he gets the 600 a. surveied
' marked and bounded & procures Mary Belfield the 1. Grantee
to join in the Conveiance with Mount joy the Grantee which he
thought would be a sufficient Declaration which was the Land
intended to pass in Fee by the 1. Grant
If these Deeds cannot operate so as to pass an Estate out of
BARRADALL'S REPORTS B211
Mary Belfield Unless they take Effect in this Manner as an
Explanation of the first they can have no Operation at all as to
Mary The Consequence of which will be that an honest Purchas-
or who acted with as much Caution as a Man well [197] could
must lose his Land & be without any Remedy for his Money
for Mount joy is dead insolvent But I hope the Court rather
than suffer such a Piece of Hardship & Injustice will support
the Deed & make it effectual one Way or the other Judges will &
ought to do every Thing to assist honest Purchasors And rather
than a Deed shall have no Operation are even subtile in inventing
Reasons to support them Ut res Magis valeat qtcam pereat And
if the Court is of Opinion that the 600 A.conveied to Woodbridge
were the Premises intended to pass in Fee by the 1. Grant Then
we have a good Title under Tho's Mountjoy But if it is taken
to be Part of the Land intailed Then I say
4. That the Warranty of Thomas the Ten't in Tail descending
upon the Pit. who is Heir to Mary the Donor will bar the Pit.
of his Reversion This is a Point well known & settled There
are 3. kinds of Warranties, lineal, collateral & that commences
by Disseisin Lit. s. 697. A Warranty is called lineal not in Re-
spect to the Warranty but the Title of the Land & is defined by
Lit. s. 703. to be where the Land would have descended from the
Person making the Warranty if that Warranty had not inter-
vened And so ex opposito a collateral Warranty is where the
Land could not descend from the Person making the Warranty
nor the Heir claiming the Land by any Possibility convey his
Title from him As to Warranties that commence by Disseisin
we have nothing to do in this Dispute
At the Common Law all Warranties except such as commenced
by Disseisin bound the Heirs of those who made them & were
a Bar to such Heirs to claim any Thing in the Tenements to
which the Warranties were annexed Lit. s. 697. And so I appre-
hend they do still unless they are restrained by some Stat.
The L Stat, that restrains Warranties is Glouc. c. 3. which
enacts that the Alienation of Ten't by the Ctirtesie with Warranty
shall be no Bar to the Issue Unless Assets in Fee simple descend
to the Issue from the Father The next is Weston. 2. 1. which
restrains the Warranty of Ten't in tail from barring the Issue
in tail And it must be this Statute if any that restrains the War-
ranty from barring in this Case But that I conceive it does not
for it does not extend to restrain the Warranty from barring
B2I2 VIRGINIA COLONIAL DECISIONS
th^«^ :n Reversfci: ryr Rem^ncer and the Ph. claims ii: Reversion
The Reason given for this EKslincticn is because the Warranty
is lineal to the Issue, but to these in Rem'r or Reversi-Dii collat-
eral And there is no Statute in Force here that restrains
cci lateral Warranties tho' it had been often attempted in Sir
E- Coke's Time as he says 1. Inst. 373. And since his Time a
Statute has been [19S] made 4 & 5 Ann. 16. that restrains some
collateral Warranties but it is not in Force here or if it was does
not reach this Case as I shall shew presently. Sir E. Cokes
Opinion is expressly in Point 1. Inst. 374. b. that the Warranty
of Ten't in Tail will bar those in Reversion or RemV notwith-
standing the Stat- Weston. 2. and is indeed a known & settled
Point of Law Mo. 9^i.
Nor is there one Authority ag't it but an Argument in Vaugh.
305. Bole a Horton In which Case the Court was divided & no
Judgm't given Nor do I know of any Case since that favours
that Oj^inion But the Distinction of lineal & collateral War-
ranties w'ch Vaugh. would explode is still kept up as appears
from the sd. Stat. 4 & 5. Ann. which as I saved restrains some
collateral Warranties viz of a Tenant for Life & those who have
not Estate of Inheritance in Possession The Words are these
Now this Statute if in Force here would not reach our Case
because Mount joy who made the Warranty bad an Estate of
Inheritance in Possion viz. an Estate tail And so such a Warranty
as this is would bind in England being left as at the Common
Law unrestrained by any Statute Consequently it must bind
here And then the Pit. is barred by it to claim any Thing in
Reversion Obj. this Warranty will not bar because the Re-
version was not divested or put to a Right before or at the Time
the Warranty was made 10. Rep. 96. 97. Seymors Case The
Lease & Rel. is a Conveiance upon the Statute of Uses And no
such Conveiance will make a Discontinuance Only so much
passes as the Grantor may lawfully pass And so the Reversion
is not touched or displaced 10. Rep. supra. 1. Bui. 162. 3. Leon.
16. 9. Rep. 106. a. b. Consequently the Pit. may lawfully enter
And wherever there is a right of Entry no Warranty will bar 2.
Lill. Abr. 684. Jacob, verb. Warranty
In the Case of (a) Dudley ag't Booth in this Court It was ad-
judged that a Warranty created upon a Lease & Rel. was a
Bar But changed their Opinion Apr. 1741 betw. Dudley &
Perrin post. 317.
(o) Vide Sir J. Randolph's Argum't No. 4.
BARRADALL'S REPORTS B213
For the Respondent it was insisted that there being only Land
enough to satisfie the 1000 Acres intailed The whole must be
taken as intailed And then the Deed of 1717. being to defeat the
Estate tail was void by the Act 9th Anna c. 13. which enacts
that all Fines &c. Acts & Things [199] whatsoever done towards
the cutting off avoiding or defeating any Estate tail shall be to
all Intents' & Purposes null & void
And of that Opinion was the whole Court except Randolph &
Digges Apr. 1739.
But surely this was a most strange Determination And the
Case could never be rightly understood by the Court The Act
never intended to make the Deeds of Ten't in Tail absolutely
void but only with Respect to docking the Intail If it did no
Action of Coven' t could be maintained on such a Deed Yet many
such have been brought in this Court Neither could a Warranty
with Assets be a Bar as was adj'd between Booth & Dudley
The Statute De Bonis restrains Ten't in Tail from aliening as
well as this Act of Ass. but no such Construction was ever made
How does this answer the Argument that the Reversion passed
by the Deed of 1717 Or the Point of the Warranty Never was
an Argument so little understood
Mercers 2 Book 48.
OCTOBER COURT MDCCXXXVI
Winston & Ux. ag't Henry & Ux. Adm'x of Syme. Cane.
John Geddes having a Wife & one Daughter married to Bobby
by whom she had two Daughters the Pit. Rebecca her eldest &
Eliz. & was also ensient of a Son by his Will May 18. 1719.
devises to his Wife 3 Slaves during her Life & the absolute
Property of six more And gave her during Life a Plantation
called Totero fort & the Use of all his Stock Household Stuff &c.
on that plantation and the use of all his household stuff, stock &c.
at Sandy Point And declared that after his Wifes Death the
principal Stock & appraised Value of the Goods should be made
good to those who had Power to demand them by that Will
And after his Wifes Death gave all his Household Stuff &c. at
Totero fort to her Daughter & her Daughters to be equally
divided among them And gave his Daughters eldest Son if any
such there should happen to be all the Stock & Household Stuff
at Sandy Point And gave his Wife the Use of most of his Plate
B214 VIRGINIA COLONIAL DECISIONS
(naming the particulars) during Life And gave her all his China
and after his Wifes Death gave the Use of his Plate to his Daugh-
ter & after her Death to her eldest Son if no such to her eldest
Daughter He likewise gave his Wife [200] 100;^. of the Mony
in Mr. Perrys Hands The rest to be equally divided betwixt
his Daughter & her 3 aforesaid Children And appointed his Wife
Guardian to the Pit. Rebecca & sole Extrix & desired she should
return a settled Account of his Estate in Virg'a & Mony in Eng-
land but should not be obliged to give Security during her Widow-
hood because of the great Confidence he placed in her just
Management for herself & others And by a Codicil to his Will
declared that the Household Stuff &c. given to his Daughters
eldest Son at Sandy Point in Case there should be no such he
gave to be divided betwixt his Daughter & her Children already
mentioned but made no Disposition of the Surplus of his Estate
The Wife proved the Will & possessed herself of all the Testors
Slaves & personal Estate amounting besides the Plate devised & 29
oz. . . 8 pert. . more to 689. 14. 4>^ but never returned a settled Acco't
of the Estate or of the Monies in England and soon after the
Testors Death married one Syme The Testors Daughter soon
after his Death w£is delivered of a Son who died at 7 years old
before the Testors Wife Syme possessed himself of all the Testors
Estate & as Guardian to the Pit. got all the Estate so as aforesaid
devised to her & also what she had from her Father who died in
1725 After the Death of the Testors Wife in 1728. Syme
married the Deft. Sarah & died intestate She administered &
married the Deft. John
This Bill is brought to have the Plate delivered a Moiety of
the principal Stock at Sandy Point & Totero fort and of the
appraised Value of the Household Stuff & a Moiety of the
Residue of the Testors personal Estate including 200;^. & Costs
recovered by Syme & his Wife of the Extors of one Danzie
She & her Sister being next of Kin And to have an Acco't of the
Pit. Rebecca's Estate & of the Profits while Syme was Guardian
The Deft. Sarah answers alone & says Syme p'd Bobby & his
Wife the Pits Father & Mother more Mony than belonged to her
& her Children in the Hands of Perry and prays to be allowed
those Paiments That the Testors Wife lived 8 years & used
the Stock & Household Stuff all that Time & hopes Symes
Estate shall not be answerable for the appraised Value but for
the Value at her Death Says she is ready to deliver the Plate &
BARRADALL'S REPORTS B215
pay the Pits what is due to them by Geddes's Will and annexes
sev'l Acco'ts of the Estate & submits how far the Estate of
Syme is chargeable Says she is ready to account for the Profits
of the Pits Estate while Syme was her Guardian being allowed
for her [201] Maintenance & Education And as to that Part
of the Bill praying a Decree for a Moiety of the Residue of
Geddes's Estate She demurs & insists the Residue belonged to
the Extrix Or if it did not the Pits are not intitled to so much
as a Moiety
In this Case there are 3 Points 1. Upon the Demurrer whether
the Surplus of Geddes's Estate is to go to the Extrix or next of
Kin If to the next of Kin what Part the Pits are intitled to 2.
Whether the Paiments made by Syme. to the Pits Father &
Mother & to the Mothers 2. Husband of the Pits Legacy are good
Paiments to bar her in this Case 3. Whether the Defts. are
answerable for the appraised Value of the Household Stuff &c.
or the Value when the Testors Wife died & whether an Allowance
is to be made for the Goods worn out & the Stock that died in
her Life time as is sought by one of the Accounts annexed to the
Defts. Answer
1. Whether the Surplus not being disposed by the Will is to
go to the Extrix or be divided among the next of Kin It is
sayed in otir old Books that the making of a Man Extor is a
Gift of all the Testors personal Estate And so the Law was
taken for some Ages till after the Stat, of Distributions 22. &
23. Car. 2. since when a Change in the Law has been introduced
as to this Matter Insomuch that it is now become a Kind of
settled Rule in Equity that where the Surplus is not disposed
of and the Extor has a particular Legacy given him such surplus
shall not go to the Extor but to the next of Kin and the Extor
shall be taken as a Trustee for them Where the Extor has no
particular Legacy the Law still remains as it was & he shall
have the Surplus
The Reason of this Change in the Law I apprehend to be this
Before the Statute of Distributions the Right to Intestates
Estates was very unsettled It remained pretty much in the
Breast of the Ordinary to dispose as he thought fit for to whom-
soever he granted Administration he had a Right to the whole
Estate At the Common Law he had a Power to dispose as he
thought fit to pious Uses & was not obliged to pay the Intestates
Debts till the Stat, of Westm. 2. The 31. E. 1. gives him Power
B216 VIRGINIA COLONIAL DECISIONS
to grant Administration to the next of Kin but the 21. H. 8. 5.
enacts that he shall grant Administration to the Widow or
next of Kin or both Yet after this Stat, if Adm'tcon was
granted to a Stranger unless there was an Appeal in 14 Days
the Wife & Children were excluded & the Adm'nx run away
with the whole Estate Which Mischiefs the Stat, of Distributions
has remedied by directing a Distribution among the Wife Children
& next of Kin let the Adm'tcon be granted to whom it will
Vide 3. Mod. 59. to 64. Palmer ag't Allicock
Now it is plain before this Stat, no one could set up a Right
to the Surplus of an Estate undisposed of by Will The next
of Kin had no Right to it unless Adm'r & no Adm'tcon was
then or is now granted where there is a Will So that the Law
of Necessity [202] threw the Surplus on the Extor there being
no other Person that could claim it But now that this Act has
established a Right in the next of Kin where a Man does not
dispose of the Residue or Surplus of his Estate Equity will
regard him an Intestate as to that & decree a Distribution among
the next of Kin that is where the Extor has a particular Legacie
given as I have already sayed and that for this Reason that it is
absurd to suppose a Man should intend to give all & some to the
same Person And therefore the Devise of a particular Legacie
makes the Implication very strong and violent the Testator
did not intend more because it he did the particular Legacie
must be useless
I take the Law to be very clear & settled as to this Matter
where Strangers are made Extors But I must own the Resolu-
tions are not so unanimous where the Wife is Extrix Yet I
believe it will appear the Cases are more & weightier that a Wife
Extrix shall not have the Surplus than that she shall Then
there are such particular Circumstances in this Case to differ
it from any that can be shown that I am persuaded it will be
y V Honours Opinion she ought not to have the Surplus in this
Case
The first Case of this Sort that we meet with is Foster & Munt
L Vem. 473. where the Extor gave particular Legacies to his
Children & to his Extors lOj^. a piece for their Care And the
Surplus decreed to be distributed
Bailey & Powell 2. Vem. 36L Ch. Ca. Abr. 244. 2. The Testrix
gives particular Legacies to all her next of Ean by Name &
also to her Extors The Surplus decreed to be distributed
BARRADALL'S REPORTS B217
Many other Cases where Strangers were Extors vide Ch. Ca.
abr. 244. & no Authority to contradict them except where
parol Proof has been admitted to prove the Testator intended
the Surplus to his Extor as Batchelor & Searl 2. Vem. 736.
Cha. Ca. Abr. 246. & Littlebury & Buckley there cited — Vide
Mod. Ca. Eq. 9. Rashfield & Careless. Ibid 11 & 27.
Then as to to the Cases where a Wife is made Extrix I conceive
the Law is the same unless from the Nature of the Particular
Legacy or some other collateral Circumstance it may be pre-
sumed or can appear the Testator intended the Surplus to the
Wife
Darwell & Bennet cited 2. Vern. 677. The Testator gave his
Wife 100;^. & the Interest of 300;^. for her Life & made her &
others Exors Surplus decreed to be distributed
Ward & Lane cited 2. Vem. 677. A Man made a Will &
his Wife Extrix Lived 20 years afterwards & acquired an Estate
Surplus decreed to be distributed
Lady Granvile a Duchess of Beauford 2. Vem. 648. The
Duke gave the Use of the Table Plate to the Duchess for Life &
made her Extrix Surplus decreed to be distributed by L'd
Cowper This was reversed by the House of Lords not upon
the Face of the Will [203] but upon the parol Proof as I conceive
that the Duke intended the Surplus to the Wife And so this Case
is rather for us The very admitting of Proof being a strong
Argument the Extrix would not have the Surplus without And
there is no Sort of Proof in this Case Another Reason for this
Reversal was because the Duchess had not an absolute but only
a special Property (a) in the Plate devised to her. Mod. Ch. Ca.
10. But here the Wife has sev'l absolute Legacies The strongest
Case against us is —
(a) Vid. Hoskins a Hoskins Prec. Chan. 268.
Ball & Smith 2. Vem. 675. Smith devised to his Wife some
Plate & Goods she had as Extrix to a former Husband And
the Surplus was decreed to the Wife 2. Reasons given for this
Decree are because the Will was made before the Case of Foster &
Munt And for that nothing was devised to the Wife but what was
her own before Reasons that will not hold in our Case where
the Wife has a very large & ample Provision The Chancellor
himself (Lord Harcourt) seemed not to be perfectly satisfied
but hoped for setting the Point as he sayed it would receive the
B218 VIRGINIA COLONIAL DECISIONS
Judgment of the House of Peers Whether it ever did does not
appear So this is only the Opinion of Lord Harcotu^ supported
by no preceeding Authority ag*t that of Lord Cowper in the
Case next before & the Authority of Darwell & Bennet & Ward
& Lane before remembered
Then the particular Circumstances of this Case differ much
from that of Ball & Smith There the Wife had nothing given
her but was her own before & so in Effect no Legacy Here the
Wife has very great Legacies six Slaves & 100;^. Sterling abso-
lutely besides the Use of other Slaves two Plantations Stock &
Household Stuff for Life From whence the Implication is very
strong and violent that he did not intend her any more than
what is particularly given for if he intended her the Surplus the
particular Legacies are useless
But there is still something further in this Case & that is a
Clause in the Will which seems clearly to shew the Testator
did not intend the Surplus to the Wife He directs her to return
a settled Account of his Virginia Estate & Mony in England &
directs that she shall not give Security because of the great
Confidence he placed in her just Management for herself & others
To what Purpose was she to return a settled Account if she was
to have the whole Surplus Then that Expression of managing
for herself & others is a plain Indication he did not intend her
the whole So that besides the general Rule where a particular
Legacy is given to the Extrix that she shall not have the Surplus
Here are the Words of the Will itself from which I conceive the
Implication is made stronger that the Testor in this Case did
not intend the Surplus to his Extrix All these Circumstances
considered which differ this Case so much from that of Ball &
Smith the only [204] Authority in Point ag't us And as that
Case is opposed by more numerous Authoritys & the Chancellor
himself seemed to doubt I hope there is no Reason to depart
from the general Rule that an Extor shall not have the Surplus
where a particular Legacy is given but that it shall be distributed
among the next of Kin
As to the Share of the Surplus the Pits, are intitled to I con-
ceive it is a Moiety if any Geddes left only one Daughter whom
the Pit. & her Sister represent If the Surplus does not belong
to the Extrix the Representatives of the Daughter must be
intitled to it & consequently the Pit. to one Moiety The Defts.
I suppose would bring in the Wife to have a Share of the Surplus
BARRADALL'S REPORTS B219
with the Daughter but I apprehend she ought not to be let into
any Share any more than to the whole It is true if Geddes had
died Intestate the Stat of Distributions would have given a 3d
to the Wife but this Case is very different We are now before
the Court not for the Distribution of an Intestates Estate but to
take the Stirplus from the Extrix upon a Presumption or Im-
plication that the Testor did not intend it to her This Intention
is proved by the Devise of particular Legacies to the Extrix
From whence we say the Implication is strong & violent he did
not intend her any more This Argument then is as strong to
exclude her from any Share of the Surplus as from the whole
The Surplus in these Cases is taken in Equity as a Trust in the
Extor for the next of Kin but this must be understood of such
as the Testor has not excluded by his Will Here is no Room to
imply a Trust for them whom the Testor has declared shall not
have it And therefore in this Case if he did not intend his Wife
more than is particularly given his Intention is clear to exclude
her from any Share of the Surplus And then the Pits are well
intitled to a Moiety
This Point is not touched in any of the Cases supra Only in
that of Lady Granvile ag*t Duchess of Beauford it seems the
Duchess was to have a third
2. Whether the Paiments made to the Pits Father & Mother &
to the Mothers 2d Husband are to be allowed as a Satisfaction
of the Pits Legacy And I conceive not It is true formerly
the Chancery did allow a Paiment to the Father of a Legacy given
to an Infant to be a good Paiment with this Difference which
seems to have little Foundation in Reason viz If the Extor
took Security taindemnifie him then he paid it at his own Peril &
should be chargeable to the Infant Notwithstanding such Pai-
ment But if he took no Security the Paiment was good ag't
the Infant 1. Ch. Ca. 245. But this Practise giving a Handle
to indigent Parents & [205] knavish Extors to juggle Infants
out of their Rights the Chancery of later Times has thought
fit to extend their Care further for Infants and such Paiments
are now always disallowed It is become a settled Rule and even
where the Circumstances are ever so hard such Paiment will
not be allowed So it was decreed by Lord Cowper Mich. 1715.
between Doyley & Tollferry where the Hardships upon the
Extor were very singular the Son living 15 Years after he was
of Age & having a Promise from his Father when in good Cir-
B220 VIRGINIA COLONIAL DECISIONS
cumstances to pay it tho he afterwards became insolvent But
the Chancellor to discountenance the Paiment of Infants Legacies
to their Parents And that the Case might not be cited as a
Precedent when the particular Circumstances attending it were
forgotten Decreed ag't the Extor Ch. Ca. Abr. 300. 1. Wil 285.
S. C. Rep'ts in Equity 103. S. C. Rep'ts in Eq. S. C.
By this Case it appears to be a settled Rule in Equity to dis-
allow the Paiment of an Infants Legacy to the Parent And
after reading this Case it may seem needless to say any thing
more upon this Head But to put this Point beyond all Dispute
I must observe further that Mr. Syme who pretended to make
these Paiments was actually the Pits Guardian It is admitted
in the Answer And the Defts. submit to account for the Guardian-
ship This pretended Paiment then to the Father must be looked
upon as a meer Fraud especially when the Nature of this pre-
tended Paiment is considered w'ch appears by the Acco'ts an-
nexed to the Answer Mr. Syme sells to Bobby the Pits Father
his Wife's Estate for Life in the Totero Plantation and the Cons.
Bobby was to pay viz. 127.<;^. is charged in the Defts. Acco'ts
as a Paiment in Part of the Pits. Legacy And this is the greatest
Part of what is pretended to be paid to the Pits. Father As
to the Paiments to the Mother or her 2d Husband I presume
nothing need be sayed There is no Instance that such Paiments
were ever allowed under any Circumstance much less then in this
Case I am sorry to observe Mr. Syme's Conduct carrys not the
fairest Appearance Surely it was his Business as the Pits. Guar-
dian to retain what belonged to her & not pay it to a Father or
Mother that he knew were indigent & careless The principal
Reason why a Paiment to a Father was formerly allowed was
this that the Father is by Nature Guardian to his Child but that
Reason must cease where there is another Guardian So that
here was no Kind of Pretence to pay to the Father And therefore
this pretended Paiment must be looked upon as a Contrivance
of Symes to secure the Mony due from Bobby upon the Sale of
the Plantation And so is a fraudulent Paiment that ought
to meet with no Countenance in Equity admitting such Paiments
were sometimes allowed But as the Rule of Equity is general
that no paiment to a Father of his Childs Legacy is good under
any Circumstances Here can be nothing sayed to support such
a Paiment upon the particular Circumstances of this Case
[206] 3. Whether the Defts. are answerable for the appraised
BARRADALL'S REPORTS B221
Value of the Household Goods or the Vahie when the Testors
Wife died And whether any Allowance is to be made for the
Goods worn out & the Stock that died in her Lifetime I con-
ceive there is no Ground for the first Part of this Question The
Testors Will is express that the appraised Value of the Goods
shall be made good to those in Rem'r I hope what the Testor
has expressly directed shall be complied with. Nor is there any
thing in the Objection that may be made that then the Legacy
is of small Benefit It is to be considered the Wife has very
great Legacies besides and it is surely some Advantage to have
the Use of Things during Life to pay their Value at a great
Distance of Time as in this Case after Death However that be
the Testors Words are express & there is no Room to make
other Construction And if so [sic]
Then certainly no Allowance is to be made for the Goods worn
out by the Testors Wife There is a great Difference between
this Case and a common Devise of the Use for Life with Rem^r
over In the common Case I agree if the Goods are worn out
in Life time of the Devisee for Life he in Rem'r must be contented
with what is left of the specifical Goods devised but here we
are not to have the Goods but the appraised Value after the
Wifes Death And so it is the same as if he had sayed My Wife
shall have the Goods paying the appraised Value at her Death
This was clearly the Intention And if we are to have the appraised
Value at all we must have the Value of the whole Goods
As to the Cattle that died in the Wifes Life I think no Allow-
ance ought to be made for them neither the Testor directs that
after his Wifes Death the principal Stock shall be made good
to those in Rem'r By which I apprehend he intended that his
Wife should have the Use & Benefit of the Stock & the Increase
but that as good a Stock as the principal was at his Death
should be made good after her Death to those in Rem'r It
cannot be supposed he intended only what should be left of the
specifical Stock should go to those in Rem'r that must have been
an useless Devise after a Life since he could not suppose many
of them would be then left Therefore by directing the principal
Stock to be made good he must intend a Stock of equal Value.
And then it is nothing to the Purpose if they had all died The
Wife might have refused the Legacy if she did not like it but
having accepted it she must perform the Condition upon which
she accepted it that is to account for a Stock of equal Value
to those in Rem'r As she had the Use of this Stock & the Benefit
B222 \nRGI\IA COLOXIAL DECISIOXS
of the Increase she ought to bear the Loss Qui sentii CA^mniodum
Sec,
Randolph for the Deft. The Surplus of an Estate undisposed
[207] of by Will has been sometimes decreed for the next of Kin
& some times for the Ex'r according to the Testators Intention
[sic] the Rule to govern these Cases The Wife here brought
a great Fortune to the Husband who was a Beggar Upon the
Marr he articled to give her 200;f besides a third of his Estate
as appears from a Clause in his Will The provision made for
her by the Will is not equal to that. And it ought to be presumed
the Testor intended to do Justice which he will not tmless the
Wife has the Surplus Marr Articles ought to be supported And
the Wife had such an Equity by those Articles as ought to rebut
the Pits. Besides there is a great Difference where the Wife &
where a Stranger is made Extor And there is no Instance where
the Surplus has been taken from a Wife Extrix Except that
of Ward & Lane supra It is not to be supposed a Man makes
his Wife Extrix meerly to give her an Office of Trouble but
rather of Benefit to take the Surplus Cited Griffith & Rogers &
Jones & Westcomb Ch. Ca. Abr. 245. 8. 10. Ball & Smith &
Bachelor & Searl supra both which were much relied on He
agreed the Paiments were not good but insisted the Plt.s ought
to take the Stock & Household Goods in the Condition they were
at the Wifes Death And that the Defts. were not accountable
for the appraised Value
Repl. The Testers Intention is the undoubted Rule to govern
Cases of this Sort And this Intention may be either expressed
or implied The Argument here is drawn from an implied In-
tention of the Testator A strong & violent Implication that he
could not intend the Surplus after devising so many & valuable
Legacies And without a strong & violent Implication I agree
the Surplus is not to be taken from the Extor which is all that
can be collected from the Case of Bachelor & Searl so much
relied on Parol Proof was there admitted in Favour of the Extors
Title And without that Proof the same Chancellor (Cowper)
decreed ag't the Extrix in the Case of La. Granvile & Dss of
Beauford Supra As to the Case of Griffith & Rogers the Wife
there had only ten Books given her & it could not be supposed
the Testor intended her no other Provision Jones & Westcomb
is indeed a stronger Case but possibly it turned upon the Nature
of the particular Legacy being a Term which is a Chattle real &
BARRADALL*S REPORTS B223
no Devise to the Wife of any Estate meerly personal And then
both these Cases are within the Rule I first laid down. Note
this last was a Decree of Lord Harcourts & about the same Time
with Ball & Smith There seems to be little Foundation in
Reason for the Difference where a Wife & where a Stranger
is Extor Especially where the Wife has a handsome Provision
as in this Case Certainly the Implication is as strong that the
Testor intended no more in the one Case as the other The
Circumstances of the Wifes bringing a great Fortune & the Man*
Articles are not at all in Proof & so ought not to influence But
admitting all to be true that is sayed the Husband by the Marr
acquired the absolute Property in his Wifes Fortune & might
dispose as he pleased Nor can it be thought reasonable or equi-
table that he [208] should give all to his Wife & leave his Child &
Grandchildren to starve And as to the Marr Articles it will be
Time enough to talk of them when a Performance of them is
sought for
Oct. 1736. The Court decreed the Stirplus to be distributed &
the Wife to have one third that the Paiments were not good that
the Defts. sho'd acco't for the Value of the Household Stuff at
the Time of the Wifes Death And for as good a Stock as was
left by the Testor at his Death And pay the Pits, a Moiety of
the Value
As to Distribution of Surplus see Farrington a Knightley
Prec. Chan. 566. & 1. Will. 544. In w*ch last all the Cases are
collected & settled clearly for a Distribution where Ex'r has a
Legacy & no Diff . Whether a Wife or a Stranger be Ex'r
See also Prec. Chan. 323.
APRIL COURT MDCCXXXVII.
Robinson ag't Armistead & al. Cane.
The Bill sets forth that John Armistead & Robt. Beverley
deced jointly purchased 100 A. of Land in Com. Glouc. which
was conveied to them by Deed Jan. 17. 1680. for the Cons, of
50;^. That Beverly by his Will Aug. 20. 1686. devised his Half
part to his Dau'r Catherine in Tail & soon after died After
which Armistead became solely possessed of the Premes & died
possessed And after his Death John Armistead his eldest Son &
B224 VIRGIXIA COLONIAL DECISIONS
Heir entered & was possessed & died possessed After whose Death
his Son & Heir John Armistead entred & died possessed leaving
the Deft. John Armistead his Son & Heir an Infant That the s'd
Cath. at the Death of Beverley was an Infant & before 21.
married John Robinson Esq*r the Pits. Father now living And
died in 1720. leaving the Pit. her eldest Son & Heir then an
Infant And since the Death of Armistead the Grandson The Defts.
Burwell Armistead & Ehidley in Right of the Deft. Armistead
an Infant have entred into the Premes claiming the whole by
Survivorship & refuse to make Partition with the Pit. Praying
therefore that the Defts. may answer the Premes And the Pit.
be relieved according to Equity.
The Defts. demur & answer and assign two Causes of Demurrer
1 . That the Pit. seeking to be relieved ag't a Right of Survivor-
ship accrued by the Course of the Common Law to the Defts.
great [209] Grandfather so long ago as 1686 There is not
sufficient Matter of Equity in the Bill to entitle the Pit. to
such Relief Especially at this Distance of Time 2. That the
Pit. hath no good Title for that Beverley being jointly seised with
Armistead could not by Law devise but such Devise is void both
in Law & Equity
For Answer say they are Strangers to most of the Matters in
Bill But believe there was such Conveiance to Beverley & Ar-
mistead the Deed being in one of their Custody Have heard it
was agreed between them that the longest Liver sho*d have the
whole And that Armistead the great Grandfather gave the
Pits. Mother a Slave which she declared she thought the full Value
of any Right she might have to the said Land and therefore
would never sue for it or suffer her Husband to do so Submit
whether a quiet Possession of 50 Years under a legal Title ought
to be now impeached upon the Pretence in Bill
I am now to speak to the Demurrer. It is granted by the
bringing of this Bill that Armistead & Beverley by the Purchase
& conveiance to them were Joint-tenants It is not pretended
that one paid more of the Purchase Mony than the other Or
that there was any Agreem't that Survivorship should not take
Place Or any other equitable Circumstance to differ this from
the common Case of Joint-tenancys The Question then upon
the first Cause of Demurrer is whether Equity will relieve ag't
the Right of Survivorship between 2 joint Purchasers paying
equally for the Purchase Or in other Words whether Equity
BARRADALUS REPORTS B225
shall controul & overturn the most ancient & established Rules
of Law For
I take this Jvls accrescendi or Right of Survivorship between
Joint ten'ts to be of as great Antiquity as any thing in our Law
It is not the Subject of any written Law now extant but is a
Part of the Lex non scripia vulgarly called the Common Law It
was introduced as I presume with the Feudal Law And had
its Origin probably from this To prevent the dividing & multi-
plying of Tenures. See L Sal. 392. But this is only my own
Conjecture For I confess I am not Lawyer enough to know
whether this Jus accrescendi is a Part of the feudal Law or obtains
in Lombardy & those other Countries where that Law is received
It is certainly unknown in the Civil or Roman Law in the Sense
we speak of There is indeed a Jus accrescendi a Right of Ac-
cretion by that Law But then it is in Cases of a different Nature
i.e. of Succession & Legacies where there are 2 Heirs or Legatees
& one refuses or becomes incapable to take his Share the other
has the whole Jure accescendi 2. Dom. 85.
But however this Law was first introduced Or whatever
was the Reason or Policy of its first Institution It is without
Doubt very ancient among us as appears by Littleton & Sr.
Edward Cokes [210] Commentary and from Bracton Lib. 4.
262. b. And obtains as well between Joint ten'ts of Lands as of
Chattels real & personal Except between Joint Mierchants or
Partners 1. Inst. 181. a. 181. b. And I take it to be clear that
this Survivorship takes Place in Eqtiity as well as at Law Except
there be an Agreem't to the contrary or some other Circumstance
Upon which Equity may construe or presume a Trust in the
surviving Party for the Benefit of the deceased
In the Case of joint Purchasors I take this Difference Where
two purchase jointly & pay the Cons, equally Unless there is
some Agreem'.t to manifest their Intention that Survivorship
shall not take place it shall be taken that they agreed to run the
Chance & Hazard of Survivorship which is equal to both And so
it may be compared to a Wager And then there is no more In-
justice or Hardship with Respect to natural Justice that the
Survivor should have the whole than that the Winner of a Wager
should insist on the Money won But where one Purchasor
pays more than the other or in Case of a Lease lays out more in
Repairs there it cannot be supposed that they agree to run the
Risque of Survivorship because of the Inequality and because
B220 VIRGINIA COLOMAL DECISIONS
by that Cleans he that is at little or no Expense might ran away
with the whole which being unequitable, a Court of Equity will
relieve ag't Surviorship by constructing a Trust in the surviving
Party and so preserve the respective Interests of either Party in
Proportion to the Mony advanced See Ch. Ca. Abr. 290. c. 3.
And this appears from the foil. Cases
2()()£. was devised by Will to be laid out in Lands & settled
to the Use of A. & the Heirs of her Bodv Rem'r to the Children
of B. Before the Monev was laid out A. died without Issue the
Trustees afterwards purchased & settled the Lands on the
Children of B. jointly in Fee according to the Will One of the
Children died And adjudged the Survivor should have the whole
3 ch. Rep. 214. Sanders versus Ballard Carth. 15. s. c. This
Case is likewise reported 2. Vem. 46. contrary viz. that the Sur-
vivor should not have the whole But the Report there is very
short & without any Reason whereas the other Books assign
the Reasons of the Decree & are much fuller And therefore
more probable to be right And in these last there is a DiflFerence
taken in Case the Money had not been laid out Nothing of
which appears in Vernon and this I take to be a Case in Point
The Pits. Husband & the Deft. & their Ancestors had long
enjoyed a Church Lease in Moieties & had often [211] renewed
under an Agreem't to take no Advantage of Survivorship
Upon the last Renewal there was no express Agreem't to bar
Survivorship The Pits. Husband being sick by Deed assigned
his Moiety to his Wife and also devised it to her by Will Yet
Decreed the Pit. should not be relieved ag't the Survivorship
And that the Grant & Devise are both void 2. Vem. 385. Moyse
ag't Gyles This may appear a hard Case since there was Room
for Equity to presume the last Lease was renewed under the
same Agreem't as the former or to make good the defective
Conveiance to the Wife But the Grant & Devise being void in
Law And no Agreem't appearing to the contrary the Common
Law was suffered to take its Course and Equity would not relieve
ag't it
A Lease for Lives was made In trust for two One dies Decreed
the Surv'r shall have the whole For the Trust must go as the
Term at Law would have done And as Survivorship would
have taken Place at Law So it must in Equity Pas. 1706. Aston &
al. versus Smallman & al. 2 Vem. 556. Here in the Case of a
Trust which is properly under the Direction of Equity The Court
BARRADALL'S REPORTS B227
would not interpose or hinder the Course of the Common
Law
These I take to be very strong Cases I shall now read another
a very recent one where you will have the Opinion of the present
Master of the Rolls. Lake & Gibson Ch. Ca. abr. 290. c. 3.
For further Authority See L Vera. 33. 217. 360.
These Cases do I think very fully make out the Rule I laid
down & the Difference I have taken viz that Survivorship takes
Place in Equity as well as at Law Unless there be an Agrem't
to the contrary or some other circumstance to induce a Pre-
sumption of a Trust Nothing of which appears in this Case Not
the least equitable Circumstance whatever And I will be bold
to say that in in a Case of this Nature there is no Instance to be
given that a Court of Equity did relieve ag't Survivorship It
would indeed be setting up such a Power in the Chancery to
controul & overturn the Common Law as must render Right &
Property very precariotis Instead of being determined by fixed
& settled Rules & Principles Law & Right must depend upon
arbitrary Decisions which are ever fluctuating & contradicting
one another This is I believe a Case of the first Impression And
if the Pit. succeeds in overturning this ancient Rule of Law I
shall expect next to have a Bill brought by the younger Children
ag*t the Heir to have the Inheritance divided Since I am sure
in the Reason of Things & according to natural Justice there is
as little I may say less Reason that the eldest Son should run
away with [212] the whole Estate & the younger Children be
left to starve than that of 2 Joint tenets the Survivor should
take the whole
I shall say nothing here of our long Possession Nor enter into
the Dispute how far the Act of Limitation may bar in this Case.
Conceiving it to be very clear upon what has been sayed that
Equity ought not to relieve in this Case For the same Reason
I shall be very short in speaking to the
2. Cause of Demurrer which is that the Pit. has no good Title
admitting Survivorship does not take Place His Title is under
the Will of Beverley who being jointly seised with Armistead
could not Devise but such Devise is void both in Law & Equity
There is no Rule of Law more universally known than that a
Joint ten't cannot devise But to demonstrate It is to be con-
sidered that Lands were not deviseable at the Common Law
Except in particular Places by Custom The Stats, of 32. & 34.
B228 VIRGINIA COLOxNIAL DECISIONS
H. 8. 5. give Men a Power to devise their Lands and by the express
Words of this last Act they must be sole seised So was the
Common Law before the Statute where Lands were deviseable
by Custom a Joint ten*t could not devise Lit. S. 289. L Inst. 185.
So the Statute was made in Conformity to the Comon Law
This Devise is therefore void And so it was adjudged in the Case
of Moyse & Gyles supra The Pit then has no Title If any
one has It is Beverley's Heir who at least should have been made
a Party to this Suit
Needier for the Pit. Survivorship has no Foundation in
natural Justice The Reason why it takes Place at Law is from
an implied Consent but that is not sufficient in Equity Besides
here the Implication is destroied by Beverley's Will which shews
it was not his Intention Survivorship should take Place
Suppose a Man sho'd lay out his whole Fortune in a Purchase
with another jointly & die Would it not be a most cruel Deter-
mination to send his Posterity a begging & let the Survivor
run away with the whole In the Case of Grants from the Crown
to two jointly It has been often adjudged in this Court that the
Survivor should not have the whole Land. (2). Regularly Sur-
vivorship never takes Place in Equity but in Case of a Gift to
two jointly In Case of a Purchase Equity always construes
it a Trust in the Survivor The Cases cited for the Deft, are
chiefly of Terms which are inconsiderable Besides Precedents
are of little Weight in Equity where every Case must stand upon
its own Bottom That if it was a Trust in the Survivor The
Devise by Beverly was a good Appointment in Equity An
equitable Interest is devisable As where one has agreed for
[2L3] the Purchase of Lands & dies before Conveiance he may
devise the Lands
He cited Petit & Steward 1. Ch. Rep. 57. Jefferys & Small L
Vern. 217. & Usher & Ayleworth I Vem. 360. But note the
first is a case of Money lent on a Mortgage and one advanced
more than the other The second is the Case of a joint Stock
in a Farm And even there it is sayed if a Lease of the Farm
had been taken the Interest would survive And the third is the
Case of a Building Lease where one advanced more in building
than the other So that they all fall within my Distinction
supra In this last Case Relief was denied because of a Purchase
& Length of Time quod noia
April 1737. Demurrer allowed by the Opinion of the whole Court
BARRADALL'S REPORTS B229
OCTOBER COURT MDCCXXXVI
Rose Extor Bagg ag't Cooke & al. Ante 179 S. C.
The Defts. having pleaded that they were under Age and
praied that the Parol might demur Upon Demurrer Judgment
was given quod respondeant ouster After which they pleaded
in Abatement of the Writ that there is another Devisee in the
Will not named in the Writ To which the Pit replied an Im-
parlance the former Plea & Judgment And thereupon demurred
And it was argued for the Pit.
That this Plea being in Abatement could not be pleaded after
Imparlance which was a known & settled Point 1 Vent. 76. 137.
Sti. 187. 2. Lutw. 22. 24. 8 Mod. 43. 381.
It is true Matter of Abatement may be pleaded after a special
Imparlance And it is also true that the Deft, here in the Office
had a special Imparlance granted but the Plea is pleaded with-
out any Notice of it And therefore they have waived & lost the
Benefit of it.
The Nature of an Imparlance is nothing else but the Con-
tinuance of the Cause to a further Day for the Deft, to advise
what to plead Terms of the Law 289. And when the De.'t. has
anything to plead in Abatement he takes his Imparlance with
a Salvis sibi omnibus advantagiis &c. And this is called a
special Imparlance After which Matter of Abatem't may be
pleaded as I sayed
[214] In England these special Imparlances are granted by
the Secondaries in B. R. & the Prothonotaries in C. B. as they
are by the Clerk here out of Court out of Court [sic] And there
are various Sorts of them as with a saving Exception to the Writ
— to the Writ & Declaration — or with a Saving of all Excep-
tions whatsoever Hard. 365. 1 Sal. 1. And when the Deft, comes
to plead he shews the Nature of his special Imparlance in his
Plea And this of Necessity for 2 Reasons 1. that the Court may
judge whether the Matter he pleads is proper after such Im-
parlance because if it be not the Plea will be judged naught
For Instance if the Imparlance be only with a Saving to the
Writ or Bill he shall not plead to the Jurisdiction or any Matter
in'Abatement of the Count or Decl. 1 Sal. 1 Hard. 365. 2. That
the Imparlance may be made a Part of the Record And so are
all the Precedents that I have seen of special Imparlances 1.
B230 VIRGINIA COLONIAL DECISIONS
Lutw. 6. 44. The Clerk in making up this Record can take no
Notice of this Imparlance not being in the Plea So if the
Record was made up here as it is in England before Trial it
could not appear there had been such Imparlance Nor will it
appear to Posterity And then if Judgment is given upon this
Record for the Deft, it will not appear but that this Courts
Opinion was that Matter of Abatement may be pleaded after a
gen'l Imparlance which I presume it is not From hence I argue
the Necessity of shewing the Imparlance in the Plea And that
where the Deft, does not do it Tis in Effect a Waiver of it
At least this Plea is defective in Form the Preced'ts being all
ag*t it And in Pleas of Abatement which are generally for Delay
the greatest Strictness & Nicety of Pleading is required the
Reason is because they are not to be encouraged or favoured
But if this Objection will not hold this Plea being after another
dilatory Plea & a Judgment thereupon quod respondeat ouster
can never be good Tis as known & settled a Rule as any in
Practise that two dilatory Pleas shall never be allowed to one
Action The Reason is that by the same Rule 20 may be pleaded
And so the Pit. delaied ad infinitum And this Reason is so forcible
it needs no Comment For Authoritys See 2 Sand. 41.
There is however an Exception to this Rule where the Cause
of Abatem't has happened since the last Continuance Now
every Plea in Judgment of Law is dilatory that tends to obstruct
or delay the Trial of the Merits & Right of the Cause Within
which Notion both these Pleas of the Defts. come the 1. Plea
that the Defts. are under Age & therefore praying that the
Parol may demur is to delay the Process till the Defts. full Age
The Plea now under Cons, is to obstruct the Trial of the Merits
by abating the Writ These then certainly are both dilatory
Pleas & therefore this last is not to be allowed
[215] Note this Plea ought not to have been received And the
proper Way would have been to have refused it in the Office
And so brought it before the Court upon a Motion 2. Sand. 41.
If the Court is ag't me in this Point Then I object to the Matter
of this Plea that it is frivolous & really no Cause of Abatement
The Obj. is that there is another Devisee who is not named in
the Writ The Statute upon which this Action is founded
does not require that all the Devisees should be joined in the
Writ And it ought to be construed so as to give the most ample
ready & benficial Remedy to CredVs Now it often happens
BARRADALL'S REPORTS B231
that there are Disputes upon a Will who shall take by such a
particular Devise And must the Cred'rs wait till that is de-
termined Certainly no But if other Lands are devised con-
cerning which there is no Dispute the CredV may sue these
last Devisees & have Judgment ag*t them And there is no
Inconvenience that Judgment should be ag't some Devisees
only & not ag't all because those ag't whom Judgm't is had
may compel the others in Equity to contribute Further a Man
may take upon him to devise Lands he has no Title to And shall
a Cred'r who knows this be compelled to sue the Devisee of such
Land with other Devisees and so create an unnecessary Expence
on both Sides Certainly the Act can never receive such a Con-
struction
Besides it appears by the Act itself that some Devisees ought
not to be sued There is a Proviso that Devises for paying
just Debts or for raising younger Childrens Portions pursuant
to Articles before Marriage shall be good And where Lands
are so devised the Devisees ought not to be sued or joined
in the Writ ag't the other Devisees Therefore in this Plea of
the Defts. upon the Face of it is no good Cause of Abatem't The
Plea is only that there was another Devisee Now it is plain
by the Stat, all Devisees are not liable Therefore the Defts.
should have shewn not only that there was another Devisee
but that he was liable by alledging he was not within the Proviso
before mentioned Otherwise it can't appear to the Court that
he ought to be joined in the Writ And consequently the Plea is
not good
But the Truth is that this Devise to Timmons (the Devisee
not named) is clearly within the aforesaid Proviso And that was
the Reason he was not joined in our Action The Devise is of 1500
A. to him in Fee — Then follows — ** he paying 1261 lbs. of
Tob'o due to my Estate to my Extrix & no otherwise to have
the said Land the said Tob'o being due for Composition & other
Fees for Lands taken up On which Acco't I have devised
to him the s'd Tract " The Case between this Timmons &
the Testor is pretty plain from the Words of the Will They
had taken up Lands together which I suppose were granted
to the Testor alone who like an honest Man [216] devises half
to Timmons upon paying the Composition This I say is pretty
plain from the Will & is the Truth of the Case Now to what
Purpose sho'd this Man be sued since nothing is devised to him
((
II
B232 VIRGINIA COLONIAL DECISIONS
but what was properly his own He had the equitable Right &
might at any Time have compelled a Conveiance of the legal
from the Testator or his Heirs This Land could not be made
subject to the Testors Debts in his Life time nor can be since
his Death It would therefore have been an unnecessary Ex-
pence & Trouble to this Devisee as well as the Pit. to have joined
him with the Defts. in this Action
I might further insist that this Case is undoubtedly within
the Equity & Meaning of the Proviso in the Stat, but enough I
hope has been sayed to shew that this Devisee ought not to have
not to have been sued And this Plea as to the Matter of it is
naught.
Mr. Att. Gen'l for the Deft. The Matter of this Plea is a good
Cause of Abatement & well enough pleaded If the Devisee is
such a one as ought not to be sued it comes properly on the Pits.
Part to shew that by Way of Repl. But the Deft, is too late to
plead this Matter after a former dilatory Plea & Judgm't quod
respondeat ouster.
And so Judgm't was given that the Deft, sho'd answer further
N B w't is sayed above that this Plea should not have been
received October 1736.
Spicer Adm'x &c. of Stone ag't Pope & al
John Stone by his Will Apr. 27. 1695 devises his Plantation &
the Profits of his Slaves & personal Estate to his Wife during
Life And declares his Will to be *' that his Son R'd Metcalf &
** Daughter Ann his Wife live upon the said Plantation after
** her Death during their Lives and also keep & employ the
** Negros upon the s'd Plantation making Use as they shall see
** Cause of all the Profits of his said Land & clear produce of his
*' s'd Negros Stock & Plantation Except the Increase of his s'd
** Negros there-after given away." Then devises to Mary &
Eliz. two Daughters of R'd & Ann Metcalf a Negro a piece by Name
& to John their Son a Negro Child the next that should be bom
Then foil, this Clause " I give unto my Daughter Ann's Children
*' that she shall bear hereafter one Negro Child apiece as it
shall please God the [217] Negro Women shall bear them
Further it is my Will that if any of the s'd Children prove
disobedient to them that the s'd R. Metcalf & Ann his Wife
do keep them until they shall submit themselves in Obedience
K
14
«(
BARRADALL'S REPORTS B233
** to their Parents." Then gives all his personal Estate to be
divided among R'd & Ann Metcalfs Children after their Deaths
And make R'd Metcalf Henry Fleet & Edwin Conway Extors
The Testors Wife died before him And Metcalf upon his Death
got all the Slaves & personal Estate into his Possion without
proving the Will w'ch was not produced till after his Death in
1699. & was then proved in Richmond Court by the Witnesses
only A. M. after her Husbands Death got Possion & marrying
one Barrow he was thereby in Possion Ann survived Barrow &
died in 1728. She had four Children by Metcalf Mary Eliz. &
John af'd & Sarah bom after the Will made to whom after their
Mothers Death Stone's Estate belonged by his Will
The Pit. one of these Children having never reced any Part
Except the Slave devised to her sues out an Adm'econ cum-
testo annexe Metcalf & Conway 2 of the Exors being dead without
proving the Will & Fleet the other refusing And brings this
Bill for a Discovery of the Slaves & personal Estate of Stone
that they may be divided according to his Will And she have her
4. Part
The Defts. set up sev'l Titles to these Slaves Some of them
under the other Children of R'd & Ann Metcalf & others under
the Children of Ann by her 2. Husband Barrow who they say
are intitled to a Child a piece And the Deft. Rust has some
Plate & other Things of Stones Estate
Before I speak to the Merits of this Case I will beg Leave to
clear it of 2 Objections very much insisted on at the Trial at Law
viz. 1. the Staleness of the Pits. Claim after a Division as pre-
tended of the Slaves pursuant to Stones Will 2. The Irregularity
pretended in Pits, suing out Administration
As to the 1. It is true the Testor had been dead a long Time
but the Pits. Title did not accrue upon his Death but on the
Death of Ann Metcalf the Surv'r of the Devisees for Life which
happen'd no longer ago than 1728 In 1729. Pit. sued out
Adm'econ & this Suit has been depending ever since So that
we sued as soon as ever our Title happen'd And as to the Division
talked of the Pit. never had one Slave or other Part of the Estate
Except the Slave devised to her So that whatever Division
has been among the rest is nothing to her She has never had
her Part And surly there is no Injustice in seeking to obtain it
2. As to the Irregularity in the Adm'econ I apprehend that
[218] Poin cannot now properly be enquired into In England
B234 VIRGINIA COLONIAL DECISIONS
we know the granting of Adm'econ is the Province of the Spirit-
ual Courts And the Chancery cannot controul them but if they
proceed irregularly the Course is to obtain Prohibitions &
Mandamus's from the Common Law Courts And in the Case of
a Probate of a Will tho' great Fraud has appeared in making
the Will Equity has refused to set aside the Will so long as the
Probate was in Force 2. Vem. 8. Archer & Moss. 76. Nelson vs
Oldfield Now this Court has it's true a threefold Jurisdiction
as a Court of Equity a Court of Common Law & it has also
Jurisdiction of Testamentary Matters But then these Juris-
dictions must not be confounded the proper Bounds between
each ought to be kept up And this as a Court of Equity will
no more intermeddle with testamentary Matters than if they
were sitting as a Court of Law they would judge by the Rules
of Equity — This Adm'econ then must be taken to be regular
till it is repealed which this Court as a Court of Equity cannot
do But to take away all occasion of Cavil I will shew that this
Adm'econ is perfectly regular The Course of the Spiritual
Court being where the Extors refuse or die before Probate to
grant such an Adm'econ as this viz. cumtesto annex. 1 Sal. 304.
Wankford ag't Wankford And that was the Case here 2 of the
Exors were dead & the other refused An Adm'econ De bonis
non would have been improper as none of the Exors ever proved
the Will. I will only add that Pit. having a Right by the Will
might have brought this Suit T^dthout taking Adm'econ at all
But she was first advised to bring an Action at Law And so an
Adm'econ was necessary
The Questions arising upon the Merits of this Cause may be
4. 1. What Estate or Interest Richard & Ann Metcalf had in
the Slaves & personal Estate by the Will. 2. Whether the Devise
of the personal Estate to their Children after their Deaths be
good And what will pass by this Devise of personal Estate. 3.
Whether the Devise to John Metcalf & to the Children said Ann
should bear thereafter of a Negro Child apiece as the Negro
Women should bear them be a good Devise. If it be Then 4.
Whether Ann's Children by her 2. Husband Barrow are intitled
to a Negro Child apiece by that Devise
1. As to the Interest Richard & Ann Metcalf had There is
no express Devise to them of the Slaves or personal Estate.
The Testor only directs that **they shall keep & employ the Negros
" upon the Land making Use of all the Profits of his Land &
BARRADALL'S REPORTS B235
** clear produce of his Negros, Stock &c " Which can be construed
no more than a Devise of the Use & Occupation. But then by
the Devise to their Children after their Death they have the Use
for Life by Implication And surely it cannot be pretended they
had any greater Estate or Interest At least for my Part I cannot
perceive the least Colour to give them any Thing more And
then certainly [219] 2. The Rem'r limited to their Children
after their Death is good. There is only personal Estate men-
tioned in the Devise however it will hardly be disputed but that
the Slaves pass by such Devise because at that Time they were no
more than personal Estate. The Question then is whether the
Rem'r of a Chattel personal may be limited after the Death of
one or more Persons And surely it will not be denied that it may
It was indeed formerly a Question tho' it was allowed that the
Use might be given to one for Life with RemV overw'ch seems
to be our Case But now no Difference is made between a
Devise for Life & a Devise of the Use for Life As the Testator's
Intention is the same in both Cases To serve that Intent the
Judges will construe the Devise for Life to be only of the Use
And then the Rem'r over is good These sort of Devises were
first introduced in Terms for Years and settled in Matthew
Mannings Case 8. Rep. 94. b. under the. name of Executory
Devises & afterwards in Lampets Case 10. Rep. 47. b. and are
now extended equally to Chatties meerly personal provided the
Limitation be appointed to arise within the Compass of a Life
or Lives in being And it makes no Difference be the Lives never
so many for there must be a Survivor And so it is only the Life
of that Survivor And as a Learned Judge used to say the Candles
are all lighted at once 1. Sid. 451. 1 Sal. 229. The Cases upon
this Head are very numerous I shall only mention a few
Wood vs Sanders 1 Ch. Ca. 131. & cited in D. of Norfolks
Case 3 Ch. Ca. 35. was a Devise to the Father for 60 years if
he so long live Then to the Mother for 60 years if she so long live
Then to John & his Extors if. he survive his Father & Mother
If he died in their Life time having Issue then to his Issue But
if he died without Issue living the Father or Mother Then to
Edward John died without Issue in the Life of his Father &
Mother And adjudged that the Rem*r was good Here the Rem'r
was not to take Effect till after the Death of 3 Persons & the
Contingency of one dying without Issue in the Life of another
Which is stronger than our Case
Sed Vide Talbot 21.
\^^^ VIRGINIA COLONL\L DECISIOXS
S~:h IS Cever 2 Verc- 3S. 5d». Tbe Tester dirwrtei the
Res: due of his Estate to be rtit tc Interest i half the Interest
pail to nis Miter during ner Lire Jt tn-e :tner r.a.: m ner Daughter
& after the Mothers Death the Daughter to have all the Interest
durinz her Life And if she died with:t:t Isstie :f her B^dv de-
^"ised the principal orer The DauV die^i withz'ut Issue & the
Rem'r over adjudged good 5o In Rachels Case cited in that supra
a E)e\-i5e was to the Wife for Life And if she were with Child
Then to that Child And if that Child died withint Issue Rem'r
over which Rem'r was adj'd good
In both these Cases the Limitation is after two Lives & a
Contingency of dying without Issue
Clargis vs D — ss of Albemarle Devise of Jewels for Life Rem'r
\22S)\ over 2 Vem. 245 & Hyde & Parrot 3:31. S. P. So Pinbur>-
& EI kin 75S. & 760. De\*ise to Wife And if she died without
Issue by Testor y^)£. to remain over And Rem'r good And the
like Point adj'd in this Court April 1734 — between Lightfoot &
Light foot where the Rem'r was limited uf>on a double Contin-
gency of djTng without Issue male Or if there should be any
allure in the Male Line
For further Authoritys see FitzGibb. 314. Goldsmiths Comp.
ag't Hall
But this Rem'r is made good by the express Provision of our
Act of 1727. w*ch is that where any Person before the Act had
by Will disposed of any Slaves for Life or Lives & thereupon
limited any RemV Such Rem'r shall be good w'ch is exactly
our Case.
Vide antea. 70.
3. Whether the Devise to John Metcalf & the Children that
Ann Metcalf should have of a Xegro Child apiece as the Negro
W^omen sho'd bear them be a good Devise And I conceive not
A Devise may be to a Person not in esse but I never yet read that
a Thing not in esse could be bequeathed [It may be by the Civil
Law 2. Dom. 159. It is a known Rule that a bare Possibility
cannot be devised. So is the Case of Bishop & Fountain 3 Lev.
427. (a) which was a Rem'r limited after an Estate tail I know
(a) See Jacobs Dictionary Title — Possibility-
of nothing in our Law so nearly resembling this Case as that
I have mentioned of Possibilitys Cases in Point cannot be ex-
pected there being no Slaves in England. The Case of Villains
comes the nearest to Slaves but I find nothing concerning them
BARRADALL'S REPORTS B237
as to this Matter It is certainly no more than a Possibility
whether a Woman shall have a Child And therefore I think the
Devise of a Child that shall be afterwards bom is not good Slaves
are to be considered in this Respect as Chatties & were really
nothing more at the Time of this Devise Now I believe the
Devise of a Calf Colt &c. that should be bom afterwards wo'd
not be good Besides it would be very inconvenient to allow
of such Devises The Owner of the Mother we may suppose
wo'd not be very careful either of the Mother in her Pregnancy
or of the Child after it was bom & some time it must remain
with its Mother And this might occasion the Loss of many an
Infant which is certainly a humane Consideration Besides the
Owner of the Mother must be both at Charge & Trouble which
seems unreasonable where he is to have no Benefit The Children
therefore ought to follow the Property of the Mother And espe-
cially in this Case where neither Person nor Thing was in Esse
at the Time of the Devise. If it be sayed that the Intention of the
Testator must be observed I agree it that is where his Intention
is consistent with the Rule [221] of Law No Intention of a
Testator is suffic't to intail a Chattle because it is against a Rule
of Law And so here it is ag't a Rule of Law that a Possibility
should be devised But if this Devise sho'd be allowed Then
there remains another Question
4. Whether the Children of A. Metcalf by her 2. Husband
Barrow be intitled to a Child apiece by this Devise The Words
of the Will are these ** I give unto my Daughter Ann's Children
that she shall bear hereafter one Negro Child apiece as it shall
please God the Women shall bear them " If we went no
further & considered the Case upon this Part of the Clause by
itself it would be clear the Children by Barrow would be intitled
But the Intention of a Testator must be collected from the whole
Will And therefore when we consider the Scope of this before us
& particularly what immediately follows the Devise above in
the very same Clause it will be evident the Tester intended only
Ann's Children by Metcalf What foil, is ** Further it is my
Will that if any of these Children prove disobed't to them that
the said R. M. & Ann his Wife do keep them until they shall
submit themselves in Obedience to their Parents " The whole
Clause runs thus —
After reading it there will need little Comment to prove that
the Children here meant are the Children of R. & A. M. & no
it
41
r^\
—A -r:, #
^^ ^
thrr 5 i R. ic A. i: 5LiZ k-7 E-re Tbf- is
r ^ * f -»■£, • » ' <i •" i-*~ ** • •■ zr^'^ ■^ m' --" ~- • •'.■5. jS-«c* ~ ^ c "" ~ ■* "•■'■•■T&*'" *■ W J%r
^ . A.K M. , *.^ 2L ^^ ^. ^ .'- 5 — « ^'-^C -. '^ M. "T^ - _ - 2--_ - _. — _Ctw . IS.- uL
xi'iA'.ar.-: r>:r^-j=^ Riir-ari rr.-r: le rrr: ira:: re:: re sre cr-^d
Ca^v: I *r.!r.k n^thinz can re rl-^iner Ii is further evident
frorr. *h*: v/r.',!e Scm^ of this Will that the T€"St:r hai in View
t!v: Prov'^hng for Ann's Children \Ly R. M. ctily It is more
than ^ror>»ar>.>: he had not under Ccns. what afterwards hai:>i:en*d
that R, M, wo^:ld die f.rst & Ann [222] marry a 2. Husband.
Sm^:/: there is t.^jX the least Notice taken of that or of the Children
of s'jch 2. Marr. thro' the whole Will The Rem'r of the p-ersonal
iW.H*/: is 1 incited to the Children of R. & A.Metcalf And no other
Children are named or I dare sav intended bv the Test or If it be
fAty-cuA that the Children of the 2. Marr. are as nearly related to
the T'-stor & it was as reasonable he sho'd pro\'ide for them as
the other I answer Perhaps he would have done so Could he
have forevren there would have been such Children But as I
have sayed he had no such Thing in View or under Cons. He
nevrrr thouj(ht of such 2. Marr. And as to any Equity that may
be pretended in construing the Will in FavV of the Children
of the 2. Marr. There is no Equity in construing a Will ag't the
ph'iin Intent & Meaning of a Testator. Such a Latitude in
constructing Wills would subvert that Right men naturally
havrj to disj;ose of their own A Man is not bound to give his
BARRADALL'S REPORTS B239
Estate in the most reasonable & equitable Manner but his Will
is the Law as to that The Question is not what the Testor
ought to have done but what he has done So here the Question
is not whether the Children of the 2. Marr. ought not in Equity
to have a Part of their Grandfathers Estate but whether the
Grandfather has given them any by his Will And that I conceive
clearly he has not He never so much as thought of them
Upon the whole I hope it appears that Rich'd & A. Metcalf
had only the Use of the Slaves & personal Estate during Life
And that the Rem'r to their Children after their Deaths is good.
That the the Devise of the Negro Children not born is void
Or if it be not that the Children of Ann by her 2. Husband Bar-
row can claim nothing by that Devise And so I pray a Decree
that the Slaves & personal Estate of the Testor now in being
may be deliv'd up to the Pit to be divided pursuant to his Will
In this Case it was agreed that the Rem'r to the Children
of Rich'd & Ann Metcalf was good And that the Devise of the
Negro Children not in Esse at the Testors Death was void And
so the Court decreed an Acco't of the Slaves & personal Estate
in Order to have them divided pursuant to Stones Will.
October 1736.
[223] APRIL COURT MDCCXXXVII.
CoRBiN ag't Chew's Adm'rs. In Debt on Bond ante 146.
Upon the Special Verdict there are two Questions 1. Whether
the Defts. paying Judgments upon simple Contract obtained
after full notice of this Action be a Devastavit 2. Whether an
Ex'r may retain a Debt by simple Contract ag't a Bond Creditor
1. I agree that if an Exec'r pays a Debt by simple Contract (i.e.
without Specialty) voluntarily without Coersion of Suit before
a Debt by Bond or other Specialty whereof he has Notice it is
a Devastavit But I apprehend it is not so to satisfie a Judg-
ment obtained on such simple Contract even tho' an Action is
brought & the Ex'r has full Notice of a Debt by Specialty before
such Judgment is had as was the Case here
It is true the Law has instituted a certain Method or Order
to be observed by Ex'rs in the Paiment of Debts which is as
follows 1. He is to pay Debts of or upon Record 2. Debts
by Specialty 3. Those without Specialty Curs. Wentw. 131.
E24-'. v:rg::::a colonial decisioxs
\':.^, Ei'r -s V.-ni t.o saiisi-e: thai J-nfzirent hefire any :ther
I^i:'.': of trjK: Testators Ex:^::: I>ri*^ -f Rtvxri If i: be zc'-ecied
that TrL^e an Exr has Xotice •:: Debts lt Sz«ecialtv be inav
• V^,-£, *'jL-.V»- •«. r{'>*' A •- -4 »• V.^ TK""" •• - » -*• -i ^»c <~ ' A ■! Ki~"^ T
ar_i7.'^r that :t is true an Ex'r mav ;;!ead such Dehts bv Sr«ecialtv
:r. Bar to an Action on simple Ctntract if he pleases But I ap-
j.r'rr.-en-i he is not botmd to dt s.o
In the Paiment of a Testators Debts the Law has left many
T:.:n^'s to the G^nscience & Discretion of the Ex'r who may
la'At'ur.y prefer one Cred'r to another as Charity or other eqtd-
taole Motive ilay induce In Debts of equal Digiuty before
Action brought It is commonly known that an Ex'r may
prefer which Cred'r he pleases 5o where an Action is brought
and p^rAir,^ that another is commenced the Ex'r may lawfully
give Way to & corJess this last Action & the Judgm't shall be
a g-'xxl Bar to the first if there be no Covin as appears by Doct. &
Stud. 157. Curs. Wentw. 144. Mo. 67S- Scarles Case & Cro. Eliz.
(402.; Green a Wilcox And no Difference appears by these Books
where the first Action is for a Debt by Specialty & the last for a
Debt without Specialty But Keil. 74. is more express that when
a Judgment is given ag't Ex'rs such Recovery is a good Plea to
all other Actions And so I understand the Book Case 9. E. 4. 12.
there cited Ex'rs were sued and pending that Auction a Stranger
recovered in another Action and adjudged a good Plea Edgcomb
a Dee Vaugh. 95. is an Authority in Point that a Judgment
[224] obtained upon a simple Contract pending a former Action
brought on an Obligation is a good Bar to such Action Con-
sequently to satisfie such a Judgment can be no Devastavit
which is the Question now before us
From all these Cases I hope it is clear that the Order to be
observed by Ex'rs in the Paiment of Debts can refer only to such
Paiments as are made without Coersion of Suit But where
Actions are brought he that first gets Judgm't must be first
satisfied Curs. Wentw. 144. And in this as has been sayed the
Ex'r may lawfully shew Fav'r by confessing one Action & delay-
ing the other And it is very equitable & convenient that such a
Power should reside in the Ex'r Since there is certainly no natural
BARRADALL'S REPORTS B241
Difference between a Debt by Specialty & a Debt without but
there may & often is more Justice & commonly more Charity
to satisfie a Debt of the latter Sort at her than the former The
principal Reason why the Law gives the Preference to the
former is that the Writing makes the Debt more clear & certain
but when there is a Judgment for a Debt without Wring [sic]
That is then become as certain And therefore no Reason after
Judgment that one should be preferred to the other.
It was an Opinion of old that an Action would not lie ag't
an Ex'r upon simple Contract And upon this probably was
founded the Difference the Law has made between Debts of that
sort & Debts by Specialty because it might seem unreasonable that
an Ex'r should have the Liberty of paying Debts to which he
was not bound before Debts he was bound to pay This old
Rule of Law having no Foundation in Reason or Justice has been
long since exploded or rather a Way has been invented to elude
it by turning Actions of Debt upon simple Contract into Actions
upon the Case upon a Promise implied by Law as was settled
about 150 Years ago in Slades Case 4. Co. 92. So that Ex'rs
being now liable to Actions for Debts of this sort No Kind of
Reason remains why Debts by Specialty should have the Pref-
erence after there is a Judgment for the other Courts of Equity
in Cases properly under their Direction make no Difference at
all between one Sort of Debt & the other If Lands are devised
to Trustees to be sold for Paiment of Debts Creditors by simple
Contract shall be let in equally with Cred'rs by Specialty & they
shall be all paid in equal Proportion 2 Ch. Ca. 54. 1. — Vem.
63. 2. Vern. 405. (But note if the Devise be to Ex*rs to pay
Debts the Land is legal Assets and Debts must be paid according
to their priority at Law) And the Reason is because there is no
natural Difference between one Sort of Debt & the other as has
been already observed And therefore Equity will make none I
[225] hope therefore as the Difference is meerly artificial in-
troduced upon Reasons that now no longer subsist especially
after a Judgment this Point will be carried no further than there
are clear Authoritys for And I am much mistaken if any Case
can be shewn where it is expressly & in Point adjudged to be
a Devastavit in an Ex'r to pay a Judgment obtained on a Debt
by Simple Contract before a Bond Debt of which he had Notice
whereas I take 9. E. 4. 12. Keilw. 74. & Vaugh. 95. to be affirma-
tive Resolutions for me And consequently are more cogent &
:S -ST 11:1 ^T-:-T r.tlinz c-t ry Way
• -,— -•
of IrJrTr-:^
2. TTb-rtZfrr an Exr zlij rrtjjn a Z'^zZi ij Si=:^> Ccntract
az : a 3 :ni Cr^'r I* is a Zt-. R-jI-e zz^z an Ex'r tnay rtiain to
satis r.'T a I>r'::t iur *: hinsclf 3nz z'zis s^ys T^'enririrtb in his
0:r.;*r :■: Exrimiir 141. is zz re :ii:iem:«:«i wbene ihe Exec'rs
Debt i5 of e^nal Diznity with th-e Crei'::s .\ni trtits a Case that
the Te5tat::rr is izirtt-r-i t: :the s zj jni^tnen: Statute or
Rec'^^tiisarLze ani t: the Exr<:"r ty3:n£ There he cannzt retain
I shall n^t ienv WentTrinh's C^mirn tz he Law in the Case
put But I appreheni a great Lhrer^nci? hersreen that Case &
ours where the Crei'rs I>ebt is hy B:ni & the Ex'rs by simple
Contract Jni^m'ts Stattites Reo: ^tnsances an? all Debts of
Record Of which the Exr is at his ceril t j take X:tice without
Information of the Creir 21. E. 4. 21. b. 2. Vem. S9.{Vide 2.
And. 150. 1 Mod. 175. & 3 M>i- 115. and jujr^e And therefore
if Judgm't be had ag't him upon a B^nd & he satisnes it before
he knows of these Debts by RecDrd it is a Devasta\'it and he
must pay the Money again out of his own Pc<:ket So that an
Ex*r cannot under any Circumstance pay a Bond Debt before
a Debt by Judgment &c. But the Law is not so with Respect
to Debts by Specialty & those without for an Ex'r may lawfully
pay these latter even without Judgm't before he has Notice of
Debts by Specialty 3 Lev. 113. FitzGib. 77. 7S. And even after
Notice which must always be by Action he may give Way to a
Judgment for a Debt by Simple Contract tho' the Action on the
Specialty be first commenced as I hope has been demonstrated
Allowing then Went worths Opinion to be Law which however
I don't find is supported by any Authority before or since he
wrote I conceive it is nothing to the present Question Nor have
I met with one judicial Resolution in the Point The Matter
then I presume must be determined upon the Reason of the
Thing & the Rule of Equity & Natural Justice And if so I hope
clfjarly to demonstrate that the Exec'r in this Case ought to
retain
It is absurd to suppose that the Law gives a Man Power to do
a greater Benefit to another than to himself Yet such will be the
Consequence if the Ex'r may not retain in this Case For im-
mcdiatfily upon the Testators Death he may pay a CredV by
[220] simple Contract without Action & before a CredV by
Specialty can possibly bring an Action And such Paiment is
BARRADALL'S REPORTS B243
undoubtedly good ag't any Debt by Specialty So where an
Action is brought on a Specialty And afterwards another is
brought on a simple Contract the Ex'r may confess this last &
it shall be a good Bar to the first as has been shewn Now shall
an Ex'r have it in his Power to do thus much for another And
yet have no Remedy himself in the like Case Surely no but
as he can neither sue himself nor pay himself the Law must
give him an adequate Remedy that is by suffering him to retain
Otherwise his Extorship will put him in a worse State than
another Cred'r whereas the Rule of the Law is In equali jure
tneltor est conditio possidentis Where the Right is equal Pos-
session puts a Man in the better Condon Now it must be allowed
that the Right between an Ex'r & Cred'r where both Debts are
by simple Contract is equal Yet the Ex'r may satisfie the Cred'r
but not himself This is surely a strange Way of reasoning It
actually inverts the Rule of Law (just now mentioned) for the
Ex'rs Possion puts him in a worse State instead of a better
He shall be without a Possibility of obtaining his Debt while
another Cred'r can easily get his especially with the Ex'rs Favour
which he may lawfully shew I must submit whether this be not
ag't Sense & Reason It has already been observed that there
is no natural Difference between Debts by Specialty & Debts by
Simple Contract And that Courts of Equity make none Since
then the Law is silent as to the Matter now before us I hope
the Rule of Equity will be no bad one to follow Especially when
the contrary Determination will be attended with so much
Hardship upon the Ex'r whom the Law intends to favour as
much as possible And will clash with a Rule of Law first intro-
duced in Favour of Ex'rs
E contra were cited 1. Mod. 175. 1 Sid. 21. 230. 3 Mod. 115.
Cumb. 318. FitzG. 77. & Dr. & Stud't 157. to the 1. Point See also
[sic]
Neidler Con't 17.
To the 2 Point were cited Went. 141. 3 Lev. 355. Lex Test. 180
And Judgment for the Pit. April 1737.
[227] Hawkins vs Thornton. Ejectmt.
Thos. Hawkins seised in Fee by his Will Feb. 8. 1675. devises
thus: ** I give all my Lands equally to be divided between
B244 VIRGINIA COLONIAL DECISIONS
'* my two Sons Thomas & John & their Heirs lawfully begotten
** forever But in Case my Wife be with Child of a Son Then I
'* give him an equal Part of all my Lands And if any of them
*' should happen to die before they come of Age the Land still to
** fall to the surviving Sons or Son And if they all die Then to
'* my Daughters &c. to be equally divided between them & the
** Heirs of their Bodies lawfully begotten forever There was
no after bom Child Thomas the Son died under Age & without
Issue John the surviving Son entered into the whole & sold to the
Deft. The Lessor of the Pit. is Heir of the Body of John The
Question is Whether the Testator's Sons took an Estate tail or
a Fee simple by the Devise to them If an Estate tail the Lessor
of the Pit. is Heir in tail & has a good Title
It must be my Task to endeavour to shew that the Testator
intended an Estate tail to his Sons & not a Fee simple I will
beg leave to premise that there is a great Difference between
Deeds & Wills in the Construction & Exposition of them The
same Words will not have the like Operation or Effect in the
one as in the other In Deeds the Wisdom of the Law has appro-
priated certain peculiar Words as Terms of Art not to be supplied
by any other & without which an Estate of Inheritance cannot
pass or be created as the Word (Heirs) is absolutely necessary
to create a Fee simple And (Heirs of the Body) a Fee tail tho*
these Words (of the Body) may be supplied by other Words
ex vi termini importing as much Nor will such Estates pass by
Deeds without these Words Be the Grantors Intent & Meaning
never so plain But in Wills the Law is not so strict a greater
Latitude is allowed & a more liberal Construction made of them
The Intention of the Testator is the Rule & Law to govern the
Exposition of them which Intention is to be collected from the
whole Will And therefore where that is apparent any Estate
may pass without those Terms of Art or any peculiar Form of
Words The Reason of this Difference is that a Man may have
Advice & Assistance in drawing of Deeds And it is his own Folly
if he has not But Wills are supposed to be & indeed often are
made in extremis in a Man's last moments when he is destitute
of Assistance Inops consilii And therefore there is Reason some
Indulgence should be shown and Construction made according
to the Intention without Regard to strict & legal Forms In-
stances of this Sort are frequent in the Books
A Devise to a Man forever or to one & his Assigns carry a
BARRADALL'S REPORTS -B245
Fee simple tho' in a Deed they would give no more than an
[228] Estate for Life for Want of the Word (Heirs) But be-
cause the Intention is plain from the Words (for ever) & (assigns)
that the Testator intended more th^n an Estate for Life & that
the Devisee should have an absolute Right that Intention
supplies the Want of formal Words So a Devise to a Man &
his Heirs male or to one & his Issue or to one & his Heirs And
if he die without Issue Rem'r over All these make Estates tail
in a Will tho* the like Words in a Deed would carry a Fee simple
In the last Instance is observable that tho' a Fee simple would
pass by the first Part of the Devise by the Word Heirs Yet the
Testators Intention being collected from the latter Part viz.
if he die without Issue that the Heirs intended are Heirs of the
Body the Law which makes Construction upon the whole Will
adjudges it an Estate tail And so in the Devise now before us
the same Words in a Deed would carry a Fee simple But here
in this Will I conceive they make an Estate tail by the plain
Intention of the Testator w'ch may be collected both from the
Words he makes Use of in this Devise to his Sons And from other
Circumstances appearing on the Face of the Will as I shall
observe presently 1. From the Words of the Devise which are
" To my Sons & their Heirs lawfully begotten for ever." These
Words ** lawfully begotten "are quite superfluous & unnecessary
to create a Fee simple It is reasonable to suppose the Testator
intended something by them And what could be intend but
that the Heirs should be begotten by his Sons I will appeal
to all the World if a Man unskilled in the Law when he speaks
of his Heirs lawfully begotten does not mean the Heirs begotten
of his Body And it is a Rule that Words in a Will are to be taken
in the Sense they are used in common Speech Had the Devise
been to the Sons & their Heirs lawfully begotten by them it
had been clearly an Estate tail for Heirs begotten by them must
be of their Body Here indeed we want these Words of Art (by
them) and (of their Bodys) but I must submit whether the In-
tention be not plain to pass an Estate tail And then those words
may be supplied. (Lawfully begotten Words naturally belong-
ing to Estates tail Talbot 24.)
Another Rule of Law in the Construction of Wills is that they
shall be so construed as to make all the Words have some Effect
or Operation if it may be But these Words (lawfully begotten)
can have none at all in this Case if the Devise to the Sons is
B246 VIRGINIA COLONIAL DECISIONS
construed to be a Fee Simple I have already observed that a
Devise to a Man & his Heirs male make an Estate tail 1 Inst.
27. a. Not from the Force or Operation of the Words [229]
in Law for in a Deed such Words would carry a Fee simple
but from the the Intention of the Testator who is supposed to
mean some thing by the Word Male. And so I say here the
Testator meant some thing by the Words lawfully begotten
And I cannot conceive what he could mean unless it was that
the Heirs should be begotten of his Sons Bodies
But the Testators Intention to give an Estate tail to his Sons
may be further collected from the Limitation over in Case his
Sons died under Age If the Sons take a Fee simple subject
to the Contingency of living till 2L as I suppose will be contended
for on the other Side Then the Limitations over which are first
to the Survivor in Case either Son die under Age And then to the
Daughters if they both die must be vain and fruitless because
the surviving Brother would be Heir to the other And so would
the Sisters to the surviving Brother & take the Lord without
this Limitation for none of them could alien before they came
of Age But the Land must of Necessity descend to the next
Heir Now a Will shall never be so construed as to make any
Devise vain & fruitless if another Construction can be made that
will make every Devise have some Effect And the Reason is
because it cannot be supposed that a Man intends to make a void
Devise And therefore rather than that shall be Sentences shall be
transposed & Words made to have a Meaning they are not
naturally capable of For Instance & to the Purpose now before
us The Word (Heirs) without any Thing more shall be con-
strued Heirs of the Body where a Limitation over will be void
without such Construction As was adjudged in Webb & Herring
3 Bui. 192. 1 Ro. Abr. 836. Devise to his Son Francis after the
Death of his Wife And if his 3 Daughters overlive their Mother &
Francis & his Heirs Then to them for Life with Rem'r over
The Question was what Estate Francis had and adjudged an
Estate tail for the Word (Heirs) must be intended Heirs of the
Body Otherwise the Limitation over to the Daughters would
be void they being Heirs to their Brother & would have taken the
Land without the Limitation if the Testator had intended a
Fee simple And so I say here the surviving Brother would
be Heir to his Brother & take the Land without the Limitation
in this Will if the Testator had intended a Fee simple And so
BARRADALL'S REPORTS B247
in like Manner would the Daughters from the surviving Son
And therefore he must intend an Estate tail Or the Limitation
over is vain and fruitless So 3 Mod. 123. Blaxton & Stone
A Man having two Sons devises to his eldest And if he dies
without Heirs Male then to the other Son Adjudged an Estate
tail in the eldest tho' there wants the Word Body for the Intent
may be collected that the Testator intended an Estate tail
because without the Devise over it would have gone to the
second [230] Son if the eldest had died without Issue 1 Sal. 233.
Nottingham a Jennings A. having 3 Sons devises to his 2d
Son & his Heirs for ever And for want of such Heirs Then to his
own right Heirs Adjudged an Estate tail for Heirs here can im-
port nothing more than Issue because the Son could not die
without Heirs living Heirs of the Father See also Talbot 1. All
which Cases prove that the Word (Heirs) in a Will are often
construed Heirs of the Body but especially where there is a
Limitation over that must be vain & idle without such Con-
struction
3. The Nature of the Estate given to the Testators Daughters
in this Will is a further Proof of his Intention in the Devise to
his Sons He gives them an Estate tail in express Words to
them & the Heirs of their Bodies And it is very reasonable to
suppose he intends the like Estate to all his Children Especially
if we consider that Men are generally more fond of entailing
Lands in the Male than female Line The Difference of the
Expression in the two Devises I take to have proceeded from
the Ignorance of the Writer who I believe was no Lawyer and
possibly imagined that Heirs lawfully begotten & Heirs of the
Body had the same Import & Meaning And so indeed they have
in common Speech in the Understanding of Men unskilled in the
Law as I have had Occasion already to observe And so this
Difference of Expression can make none in the Intent w'ch
upon the whole Will I hope is pretty clear to give an Estate tail
to all his Children
The Case most resembling this is Church & Wyat Mo. 637.
One by Will devises part of his Land to the Child his Wife went
with & to his or her Heirs lawfully begotten & the Residue he
devised to a Daughter that was bom To have to her & the
Fruit of her Body And if she died without Fruit of her Body
that it should remain to the Child in Ventre sa mere And if both
died without Fruit then to I. S. And he willed that one should
Bj4S VIRGIMA COLOXIAL I/ECISIOXS
be Heir to the other The Questicn was irhat Estate the after-
?jorr. Ch:>: had and a.ij-iged that the Word Heirs lawfully
be^'ottec in the Premises and that one sho":ili be Heir to the
o".h*rr in the End of the Devise maie an Estate tail withotit the
Word Bodv And this I take to be exactlv our Case the Devise
is to the Sons & their Heirs lawf'^Hy begotten And M either die
un^Ier Age the Land still to fall to the Survivor And if both die
then to the Daughters Which Words I presume will be agreed
to be of the same Import & Meaning as if he had saved that one
should be [2-'jI] Heir to the other for so in Effect they are to be
But it will be objected If this is adjudged an Estate tail
Then if the Sons had Issue & died before 21. the Issue must be
disinherited which the Testator could never intend. In Answer
to this I say that where the Words of a Will are doubtful & will
admit of two Interpretations that Construction ought to be
made which is most agreable to Reason & lustice But where
the Words of a Will are clear & express I apprehend no such
Latitude is allowed but Construction must be according to the
Words of the Will tho' it may be attended with a seeming hard-
ship or Inconvenience In this Case the Words of the Will are
express that if either Son die under Age the Land shall go to the
Survivor And therefore tho* it may seem hard that the Issue
of the Son dying sho*d be disinherited if he had any & died
before 21 It is the express Will of the Testator & must be sub-
mitted to
But with Respect to the Argument now before us there is
really nothing at all in this Objection for it is equally strong
whether the Sons take a Fee simple or a Fee tail since in either
Case the Issue would be disinherited if the Devisee died before
21. For the Limitation over is not upon dying without Issue or
under Age but generally upon dying under Age And so
This Case is nothing like (a) Burgis & Slack w'ch was argued
in this Court last April That Case was a Devise to a Son &
Daughter their Heirs & Assigns And in Case of the Mortality
of either before 21. or Marriage of his Daughter or without
Issue Then the whole to the Survivor This indeed was
adjudged a Fee simple subject to to the Contingency of living
till 21. or having Issue And principally I believe for this
Reason that if it had been adjudged an Estate tail Then in Case
the Devisee had died before 21 tho' he left Issue that Issue
(a) Ante Page 182.
BARRADALL'S REPpRTS B249
would be disinherited which it was sayed the Testator could not
intend However the Court were not unanimous in that Judg-
ment And there is an Appeal not yet determined
The Difference between that Case & this has been already
observed there the Limitation over was upon dying under Age
or without Issue Here upon d)ring under Age only In that Case
it was argued to be an Estate tail by Implication only And that
by Force of the Words dying without Issue for the first Words
were strong to carry a Fee simple ** to them their Heirs &
Assigns. Here we say an Estate tail passes by Force [232] of
the Words in the Devise itself viz Heirs lawfully begotten
So that the Resolution in that Case will not at all influence
the Determination of this Upon the whole I hope it is evident
both from the Words of the Devise And other Circumstances
in this Will which have been observed that the Testators In-
tention was to keep his Estate in his Name & Family And that
it sho*d not be in the Power of his Sons to disinherit their Issue
And so I pray Judgm't for the Pit.
For the Deft. It was sayed the Word Body or something tan-
tamount was necessary to make an Estate tail Co. Lit. Sect. 3L 7.
Co. 42. That the Stat. De Donis required that voluntas Dona-
toris should be manifeste expressa And here the Testators Inten-
tion to give an Estate tail was far from being plain or manifest
That the Words, lawfully begotten, were of no Signification nor
Operation in Law for every Heir must be lawfully begotten The
Case of Church & Wiat Mo. 637. proves that those Words alone
would not make an Estate tail without the Assistance of the
latter Clause ** That one should be Heir to the other '* And there
was a further Reason for that Judgment viz the Rem'r over if
both died without Fruit &c. Which is afterwards mentioned
by the Reporter to make an Estate tail tho* not sayed to be a
Reason for the Judgm't. So that upon the Matter that Case
was an Authority ag't the Pit. There is no Case in the Books
where the Words ** lawfully begotten " are adjudged to make
an Estate tail. Vid. Prec. Chanc. 131, 132.
That the Cases cited for the Pit. to prove the Word Heirs
in a Will is often construed Heirs of the Body are nothing to this
Case For in all of them there is a Rem'r over on dying without
Heir or without Issue. But here the Limitation over was upon
Dying before 21. which is very different The Testator intended
no more than to limit the Estate over in Case of that Contingency
B250 VIRGINIA COLONIAL DECISIONS
And if the first Words did not make an Estate tail as they cer-
tainly did not , The Limitation over signified nothing at all But the
Sons took a Fee simple subject to the Contingency of living till 21.
That the Limitation of an Estate tail to the Daughters was
so far from being an Argument that the same Estate was in-
tended to the Sons that it was a strong Argimient to the con-
trary For it is reasonable to presume the
N. B. (Continued on page 357 two leaves missing here.)
[357] Hawkins & Thornton continued from page 232.
The Testator knew the different Import and Meaning of the
Words Heirs of the Body lawfully begotten and Heirs lawfully
begotten especially as he uses the Words lawfully begotten in
both Places And the Difference of the Expression if it proves
any Thing proves a Difference in the Intent And there may
be a good Reason Why he sho'd rather intail his Lands on his
Daughters than his Sons viz. That it should not be in the Power
of a Husband to prevail on them to disinherit their Issue
The Argument drawn from the Limitation over being to the
Person who would have been Heir to the first Devisee is fallacious
as well as from the Purpose For in the event there were but
two Sons if the Wife had been ensient of another he would have
taken with the survivor of the other two and so the Disposition
is different from what the Law would make and the Rem'r over
not useless.
It was insisted that Heirs were to be favoured especially in
doubtful Cases and the foil. Books cited Poll. 426. Meynell and
Read. That words incertain (as lawfully begotten were) ought
to be rejected 6 Co. 16. Wild*s Case. Cro. Eliz 472. and the Case
of Burgis and Hack was also relied on.
April 1737. Judgment for the Pit. that it was an Estate tail
by the Opin. of Lee, Lightfoot, Tayloe, Randolph, Custis,
Grymes, Carter and Digges. Robinson, Byrd, Blair and the
Governor con. Q.i
B. The Arguments that seemed to prevail most were the vulgar
acceptation of the Words (lawfully begotten) and the Limitation
over being to the next Heir Vide 2. Lev. 162. Tilly and Collier.
Vide ante 249.
Hark back to p. 237. These three pages following were omitted in their proper
place. W. W. S.
'I take this to be a "Q" but it is obscure. W. W. S.
BARRADALL'S REPORTS B251
[358] Slaughter ag't Whitelock.
Martin Slaughter by his Will Aug. 23. 1732. devises four
negroes to his Son George (the Pit.) and the lawful Issue of his
body for ever and four negroes to his daughter Judith and the
lawful Issue of her body for ever but if either my son or daughter
shall die without such Issue the survivor to have an enjoy the
said Slaves and their Increase Judith was possessed of the
Slaves devised to her married the Deft, and died without Issue
The Question is whether the Limitation over to the Survivor
who is George (the Pit.) be good.
I shall agree that Slaves here are to be considered meerly as
Chattels It was a great while before Limitations over of
Chattels were allowed for the Rule of Law was that the Gift
of a personal Chattel for an hour is a Gift forever However
the Use of a Chattel might be limited to one and the Rem*r
to another and this was always allowed But about the Begin-
ning of King James 1. the Law began to be altered and in Devises
of Terms for Years which are Chattels real the Judges would
allow of a Rem'r over after a Devise for Life This was first
settled in Matthew Manning's Case 8 Rep. 94. b. and afterwards
in Lampet's Case 10 Rep. 47. b. and was introduced under the
name of Executory Devises It was longer before the Judges
would admit of such a Rem'r of Chattels personal but after the
Restoration when personal Chattels began to grow large such
limitations of Chattels meerly personal began to be allowed upon
a Distinction that at one [sic] preserved the old Rule of Law
sacred and inviolate and at the same Time satisfied the Intention
of the Testator For in Case of a Devise for Life with Rem'r
over to another the Judges construed the first Devise to be only
of the Use and then the Rem'r over stood well with the Rule
of Law I first mentioned So that now it is no longer a Question
but that such a Limitation may be both of Chattels Real and
Personal provided the Contingency upon which these Limita-
tions are to take place be appointed to arise within a reasonable
number of Years or within the Compas of a Life or Lives in being.
And this is as far as the Law will admit of such Limitations over
of Chattels.
I shall proceed now to consider whether the Devise before
us will come within this Rule. The Devise is in short to two
and the Issue of their bodies and if either die without Issue
B252 VIRGIXIA COLOXIAL DECISIONS
Rem'r to the Surriv'r It will be saved I Drestime that here
are worcs to make aa Estate-tail '->>y' that a chattle can't be
intailed acd so the ab'S.clute Property vested in the nrst devisee
and the Rem'r over Ls repiLgnant ani void I shall agree that if
the subject of this De\-ise was a real Estate these Words would
carrv an Estate-tail for the Word Issue in a Will is of the same
Import as Heirs of the Bc-iy but I conceive there is a great
Difterence Where the Subject of the Devise is a real Estate and
where it is a personal Estate for in the last case the Word Issue
has not the same Construction as in the nrst A Devise of Land
to one for Life and if he die without Issue Rem'r over gives an
Estate-tail by Implication ani Construction of the Testator's
Intention that the Rem'r over s'nould not take Place till the first
Devisee was dead without Issue But in such a Devise of a
Chattle I conceive the 1 De\'isee has onlv the Use and the Estate
shall not be enlarged by implication it being contrary* to the
Nature of the Thing given to be intailed And therefore the
same Construction is not made as in the other Case but dying
without Issue is taken to be a Contingency which being re-
strained to the time of the Devisc-e's Death falls within the
Common Rule of a Limitation upon a Contingenc)' to happen
within the Compas of a Life Issue ex vi termini does not import
Heirs of the Body
The Limitation in this Case is " If either die without Issue
then to the Sur\'ivor " Here if the djnng without Issue is taken
generally whenever there shall be a failure of Issue the Limita-
tion over cannot be good because that will tend to a Perpetuity
which the Law abhors and is the true Reason why Limitations
over of personal Things are restrained. But I conceive the Testa-
tor meant no more than this that if there was no Issue living at
the Death of the Son or Daughter first dying that then the Slaves
should go to the Survivor. The Words of a Will are to be taken
as they are understood in Common Speech. Now among the
vulgar a man is sayed to be dead without Issue if he leaves no
Children at his Death Issue and Children are words sinonimous
in Common parlance.
Smith and Clever 2 Vem. 38. 59. The Interest of a sima of
money was devised* to one for Life and if he died without Issue
the Principal to go over and the Rem'r held good for to serve
the Intention of the Party and support the Rem'r the dying
without Issue was applied to the Time of the Death of the 1
BARRADALL'S REPORTS B253
Devisee. Pinbury and Elkin 2 Vern. 758. 766. Prec. Cha. 484.
Devise to his Wife provided if she died without Issue then 80;^.
to remain to his Brother after her Decease and the Rem'r held
good for the d)ring without Issue must be understood leaving
Issue at her Death and it cannot be supposed the Testator in-
tended his Brother should have it if Issue failed 100 years after
[360] Target and Grant Ch. Ca. Abr. 193. and cited Fitzg. 317.
A Term was devised to One during his Infancy and if he attained
his Age of 21 years then to him far Life and to such of his children
as he should leave it to and if he should die without Issue then
limits it over which was held good for the dying without Issue
was restrained to the Time of the Death of the 1 Devisee
Forth and Chapman cited Fitzg. 317. and Rep. 1 Will. 663.
Devise of a real and personal Estate to A. for so much of it and
for the rest to B. and if either depart this Life leaving no Issue
then to such a one Which Limitation as to the personal Estate
was held good leaving no Issue importing a dying without Issue
at his Death See Hughs and Sayer Maddox and Stains cited
Fitzg. 318. •
All which Cases prove that dying without Issue have a different
Import and Construction as the Subject is a real or personal
Estate for in all the cases above cited they would have been
taken as an Increase of Interest and made an Estate-tail if the
Devise had been of a real Estate but being of a personal Estate
they are construed to be Words of Contingency only Upon
the Reason and Authority of these Cases I presume the De-
termination of this Court was grounded in the Case of Lightfoot
and Lightfoot heard in this Court April 1734. which was thus
The Testator devised as follows I give all the Rem'r of my Estate
real and personal to my son Francis and his Heirs male of his
Body and if he die without such Issue Male or if there be any
Failure hereafter in the Male Line then I give the same to my
Brother and adjudged that the Rem'r over of the personal
Estate was good tho' limited upon a double contingency and
tho' the Words undoubtedly gave an Estate tail to the Son in the
Lands And this I think a much stronger Case than ours.
But there is still something further in this Devise that plainly
shews the Testator did not intend the Rem'r over sho'd take
Place upon a dying without Issue generally but the Words
do obviously restrain the Contingency to the Compas of a Life
and that by limiting the Rem'r to the Survivor ** In Case
^ ^ -
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i 1
n^.r^ -.-^.r- :: z-A ^'-'ir t-.-ji jr.r:=i r? "tr An t^.> j^en r t_
J'-'i'* :r. 'r.-T L::* tine :f '^•r .i t^^ z-tli X-«i«i >- —
L-ar-.?. i Aril'-rr I SjJ -L^T Ze-^-fe :: i Trm t: A & the
Hrirt '.: h:= B^v:— A- f :f h-r li^ irr'' ut I>5:i-r Iz'-^nz 3 Then
V, ri *.i:» i^irr.it^t:'.:! h-r.i Z'*-*i wtriiiz -t«:~ 2. C rtitinz^^^^^y *"^
':.>,', ',^. T:th:r. tr.e C^nca^s :: i Liff \'LU 2 Vem >r^. lol.
- . .-*^ .. M^ • ...^ f . .^. . ^ . 1.S5 —•s in rz l-^*r -. ^rz _ - .*-C ^1*^ \ i » * 1 **tr
V-^:.7 ^vv*rr :% i'^^oi either Wav An: t'::h the Ccntirzencies
r.;iv*- ':.'<y.,*'Z.^A Ani cr.e cf th-rse C:n5trt::t:':ns cught to be made
*l:/i th'; V/or^;* r.f tr.e Will -srere net sc iilain as I conceive thev
;»r': Ar.^i that to S'Jt.t.ort the Retn'r over which otherwise must
\a\ \'f/A It o^'i'ht never to te st:::n':sed that a Man intends a
v;;;r. V/i^l Devise if anv other Construction can be made And the
P il'- of Lav/ is to consume a Will so as to make all the Parts
of \y *X'4vzA if it may be which in this Case can onlv be bv the
BARRADALL'S REPORTS ' B255
Construction I contend for And this will offer no Violence to the
Words but rather preserve the plain Intention of the Testator
"by supporting the whole Will For I must submit whether it be
not more reasonable to suppose that the Testator intended the
Rem'r should take Place in Case fhe Devisee left no Issue at
his Death living the Survivor than upon so remote a Contingency
as a Failure of Issue 100 or 500 Years after I conceive the Word
Survivor plainly restrains it to the first
There is a Case in FitzG. 314. The Goldsmiths Company ag*t
Hall that I suppose will be much relied on but when it comes to
be considered will appear to differ much from this The Devise
was thus ** I give & bequeath all my real & personal Estate unto
'* my Son Fr. H. & to the Heirs of his Body to his & their Use
** And if my said Son shall die leaving no Heirs of his Body
** living Then I give & bequeath so much of my said real &
** personal Estate as my said Son shall be possessed of at his
** Death to the Goldsmiths Company** In this Case it was the
Opinion of my Lord Chancellor that the absolute Property of the
personal Estate passed to the Son And that the Limitation over
was void But the principal Reason was this Because the Com-
pany was [238] to have no more than the Son should have left
unspent And so he had a Power to dispose of the whole & con-
sequently the absolute Ownership passed There is another
Reason indeed given which is that Words which give an Estate
tail in the Land must transfer the entire Property of the personal
Estate But that can weigh nothing in the present Case where
the Devise is merely of Chatties And I have before observed
the Difference there is where the Subject of the Devise is of a
real Estate & where it is of an Estate personal In the Case
of Lamb & Archer supra the Devise was to A. & the Heirs of his
Body which would be clearly an Estate tail in the Case of
Lands And yet there the Limitation over was adjudged good So
in the D. of Norfolk's Case the Term was limited to the 2d Son &
the Heirs male of his Body & yet the Rem'r over held good
Which Cases prove the Difference where the Subject is a real
Estate & where a personal Estate Here we are in the Case of a
personal Estate It is repugnant to the Nature of it to be intailed
And therefore ought not to be supposed that the Testor intended
so if another Construction can be made.
Acril for the Deft. If we were in a Case of Lands the first Part
of the Devise would create an Estate tail without all Question &
B2o6 VIRGINIA COLONIAL DECISIONS
would need no Assistance from the subsequent Clause to make
it so by Implication. And it is a Rule that Words in a Will
creating an Estate tail in Lands cany the absolute Property
in personal Things In all the Cases cited con. the first Devise
was only for Life which to 'support the Testors Intention was
construed to pass only the Use And that the express Gift
should not be construed to be enlarged by any subsequent Words
As D>'ing without Issue or the like as it would in Case of a Devise
of Lands. But where the absolute Property is once given as in
this Case. The same Thing cannot be given over. He cited 1
Ch. Ca. 129. 1 Vem. 35. 326. 2 Vem. 255, 347. 1 Sal. 156. FitzG.
314. which was much relied on.
April 1737. Judgment for the Deft, by the whole Court.
Except Lee & the Governor And I think very rightly — But
Vid. 1 Will. 534. Hughs a Sayer. Devise of personal Estate to
A. & B. And upon either of their dying with't Children then to
the Surv'r Held a good Lim over.
See also 'Pinbury & Elkin 2 Vem. 758. Prec. Cha. 484. And a
Diff. taken in this last betw. a Devise of a Chattle to one &
the Heirs of his Body with Rem'r over And a Devise to one
generally & if he die with*t Issue Rem'r over.
How far personal Estates may be limitted over Vide Bamer-
diston Chan. Rep'ts 54. &c.i
[239] Brooking vs Dudley. Dixon a Brooking & Collier a
Brooking in 3 Actions of Detinue for Slaves Upon a Special
Verdict the Case is Judith Whale being possessed of sevl
Slaves intermarried with Ralph Emery & died in 1724. The
Pit. Brooking being her Heir at Law after her Death bro't an
Action of Detinue in this Court ag*t Emery for the Slaves And
being an Infant one W'm Brooking is named his next Friend
or prochein Amie in the said Suit In this Action the Pit. had
Judgment to recover the Slaves or 120;^. the Value in April 1727.
And upon the Trial the Court gave their Opinion which is entered
upon Record that the Slaves did not vest in Emery by the
Marriage At the End of this Judgment there is an odd sort of
Rule enter'd to this Effect That in Case the Value found by the
Jury exceeded the Appraisem*t of these Slaves (in K. & Q.
Court) that the Pit. would release so much as the same exceeded
And if the Appraisem't was more the Pit. was to have Exon for
> This line an addendum in a different hand. W. W^. S.
BARRADALL'S REPORT B257
so much more Soon after this Judgm't in May 1727. Emery
sold one of the Slaves to the Deft. Dudley & 2 others to Dixon &
Collier the Pits, in the other Actions (w'ch are the Slaves in
Dispute) for as much Money as the Slaves were appraised to &
paid the Money to Wm. Brooking the Prochein Amie but they
knew of the Judgment when they purchased. The Pit. Brooking
was then about 12 Years old & had no Guardian till after he was
14 when he chose Wm. Lawson
The Question in this Case is whether the Sale by Emery after
the Judgment And the paying of the Money to the Prochein
Amie shall conclude the Pit. who was then under Age or be
any Bar to his Right But first it may be necessary to shew the
Origin of the Pits. Title to these Slaves And then to consider
how far the Act of a Prochein Amie shall bind an Infant Upon
which the Solution of the Question in this Case does properly
depend
As to the Pits. Title. If the Question was now whether the
Slaves vested in Emery by the Marr I presume it would be de-
termined that they did upon the explanatory Act of 1727. which
is express in the Point But there having been a Judgment in
the Case that Act has very judiciously provided that the Prop-
erty shall be established according to the Judgment & is not
now to be questioned It is clear then that the Pit. has a good
Title unless by some Act since that Judgment his Title is defeated
To proceed then in the Enquiry how far the Act of a Prochein
Amie shall bind an Infant It may be necessary to see what the
Office of a Prochein Amy is The Law is very careful & tender
to preserve the Rights of Infants who are presumed to want
Discretion for the Conduct & Managem't of their Affairs. And
therefore all Acts or Contracts of theirs except for Necessaries
are void in Law Except [240] there be a Benefit or Appearance
of such resulting to the Infant Cro. Car. 502. Loyd a Gregory
3 Mod. 301. 307. Thompson a Leach 2 Danv. 767. &c. Upon
the like Presumption & Reason it is that the Law will not allow
an Infant to sue or defend an Action in proper Person or to make
an Attorney for that Purpose but he must always sue & defend
by Prochein Amie or Guardian to be assigned by the Court And
he may prosecute a Suit by either but must always defend by
Guardian It is a great Error to confound the Office of a Guardian
& Prochein Amie together as some Authors do for there is
certainly a great Difference between the Power & Authority
2:^^',
fc"-t t?.^ Cs.% is cnr.e '^r.'z.'irrsrj:^ inii: the ?r:*:hrii: A~, Trh^
»' * —-,";, -» ^. — •--^Trr <a^ ^*-. .«_ .T — - ^ . — — —^^ m^.,.^ *. — c ^ - - ..- >
rr^ofj Lav/ \jf-/,h;isfz tr.e Prochein Ami vas not an O^c^ at ihe
O/rr.rr.or. Lav.- Irjt v. as introd-^cei br Statute as has n-een cb-
vrT'/'rd .W'.ther is an Action eiven bv anv Statute X:r is there
ar.y In-.tanc'i of such an Action in anv of our Bcoks. It w?uld
tf.'rn ryr ':xtrerr,':ly hard & not at al' consonant wi:h the Spirit
of our Lav/s sfj tfrnder of Infants Rights as has been observed
if the Act of a pr'^Khcin Ami should prejudice an Infant when
he must U; without [241] Remedy for the Damage he suners Twill
b^;^ 1' avc to rear! a Case or two that I hope will prove & illustrate
what has been offered on this Head. Palm. 295. Simps'.»n & aV
uy/t Jackvjn Cro. Ja. 040. S. C. Sti. 309. From these Cases &
what has been sayed as well as from the Reason of the Thing I
hope it is sufficiently evident that a Prochein Ami has no Power
BARRADALL'S REPORTS B259
at all to intermeddle in* a Judgment obtained by an Infant And
that any Act of his prejudicial to the Infant is void I might add
the Inconvenience that must follow from a contrary Determina-
tion For then any Person under Pretence of Friendship to an
Infant may thrust himself into this Office of a Prochein* Ami
he may receive his Money release his Right And if he prove
insolvent the Infant be without any Kind of Remedy By which
Means half the Infants in the Country may be ruined
If then no Act of Brooking the Prochein Ami can hurt the Pit
If the Paiment of the Money to him by Emery be no Paiment
at all in Discharge of the Judgment as I think must follow from
the Doctrine I have advanced It will also be pretty clear I hope
that the pretended Sale of the Slaves by Emery upon the Cir-
cumstances of this Case cannot hurt the Pits. Right or be any
Bar to his recovering them I call this Sale of Emerys pretended
because I believe it will evidently appear that the Sale in fact
was Brookings & Emerys acting in it was only an Artifice to
blind the World. It was certainly a fraudulent Contrivance
between Brooking Emery & the Piu'chasors to cheat the Pit.
out of his Slaves — Brooking the Prochein Ami was a needy
Man & all he wanted was to get Mony into his Hands The
Purchasors who no doubt had a good Bargain in the Slaves were
conscious that Brooking himself could not sell them if they were
actually delivered to him And so they agree upon this fine Artifice
that Emery sho'd pretend to sell them tho* the Mony was paid
to Brooking The Facts in the Verdict prove all this to a Demon-
stration The Slaves were sold soon after the Judgment Emery
indeed takes upon him to sell them but Brooking receives the
Mony of the Purchasors who knew of the Judgment at the Time
The Purchasors then are inexcusable being privy to the Fraud &
Contrivance And surely no Fav'r is" due to Men that will thus
combine to rob Infants of their Rights This Sale then I conceive
must be looked upon a [sic] Brookings Emery was only his
Agent the better to colour the Fraud And then sure it will not
be pretended that this Sale shall bar the Pit. from recovering
It was never yet allowed that a lawful Guardian could sell the
Slaves of his Ward Much less one who has really no Power or
Authority over the Infant or his Estate It is really a Case of
general Concern & may affect all the Infants in the Country
I can't tell whether any Stress will be laid on the Rule that
is entered at the End of the Judgm't which I opened perhaps it
_ z^>_ ^^ ♦ :7
.-fc. wl_^'^
*^
* ^^^^ ■* • * ^ ■»• • - ^^ — - ^ -
*,. ^» -"Ti **.# 4^' •*- — J" -— - - » f^^ ' '^ .r^...'-,. — i-- ^^^ i*^. _■ UC
*r :.\ ^y/ir\ r^r*'^ rr.ter. lei * ^ T^r'^z - m. a r : Tr-=r tc se^ t^e ^.aves
r.r v> tiilc/^ M'.r.v rn l^.rri cf th-rtn Besif-rs the R:ije is vcii in
ia>'r*^^ r.'.t cr.Iv f^r hirr^^lf b^r: the L-err. tec Read the R-jIe
)«'o Ifa-r. "y-.Il ^v tr.e Deft, iras bctini bv this R:ije And if it was
tr.-^ Ir.'::^;nat:''.r. of this Cotirt to see their Rules ds.de a State &
Prot>:r*v of to colotir & carry cti a Fraud in Prejudice of Infancs
%ry>«>; Ca'e :« their peculiar Prcvince
B'^t a/Irr.:tt:r.g this coTild be regarded as the Act of the Infant
St:*.l it Tto-jid be void tho' upon Record For as I have already
or/vrr/ed no Act of an Infant tho' of Record if any Ways pre-
yylvAiaX to him shall bind him It is known Law that even a
Fir.fr k-vied by him may be avoided during his Infancy 1 Inst.
V/>\, a. '>>>0. b. And this Action was brought before his full Age
hf:^v\f:s the obviotis Meaning of this Rule is no more than this
that if the Pit. could not have the Slaves again he should have
as much Money as the Slaves were appraised to It was never
intended to exclude the Pit. from having his Slaves if he could
^et them And then the Rule is nothing to the Purpose unless
the Mony had been actually paid to him which it was not
The Hardship upon the Defts. will be no more than this that
they mu.st sue Brooking for their Mony again And whether it is
not more reasonable that they should be put to that Trouble
than that the Pit. should lose his Slaves must be submitted
Had they been fair Purchasors without Notice of the Judgment
ft<'>mething might be sayed in their Excuse but they knew at the
Time they were buying the Slaves of an Infant they were privy &
consenting to the Juggle & Contrivance of the Pochein Ami &
fio were Parties to the Fraud I hope no Countenance will be given
to Fraud in this Court Nor so ill a Precedent established that a
Prochein Ami may sell the Slaves of an Infant
By the Laws of this Colony every Guardian must give Security
before he can act as such and for omitting to take Security the
BARRADALL'S REPORTS B261
Justices are answerable And so the Infants Right & Interest is
sufficiently protected But a Prochein [243] Ami gives no Security.
And il he proves insolvent the Infant is ruined
For the Deft, it was sayed that by the Judgment the Defend't
had an Election to pay the Money or deliver the Slaves And that
by Paiment of the Money the Property of the Slaves was divested
out of the Pit. It was granted that that nothing done to the
Infants Prejudice should bind him but that here was no Injury
to him the Value of the Slaves was paid to a Person having
sufficient Authority to receive For if the Prochein Amy could
not receive the Mony There was no other Person to whom it
could be paid the Infant having no Guardian. If the Sherif
had levied the Mony on Exon he must have paid it to the Pro-
chein Ami And where is the Difference That the Infant was
in no worse Case than if a Guardian had acted in this Manner
which it is allowed he might do The Infant might have his
Action ag't the Proch. Ami That here was really nothing of
Fraud in the Case nor any Occasion for underhand Dealing
For Emery might lawfully sell the Slaves after the Judg*t If Exon
had been sued out & the Sherif could not get the Slaves he must
have levied the Money Where then was the Fraud or Injury
to the Infant. A great deal was sayed of the Power of Guardians.
And it was industriously endeavoured to confound the Offices
of a Guardian & Prochein Ami & make them the same It was
also much insisted on that great Service was done to the Infant
by bringing the Suit for if it had been delaied a little longer till
the explanatory Act was made the Infant would not have re-
covered at all
April 1737. Judgment for the Deft.
Note the Court seemed not to take the Difference between
a Guardian & a Prochein Ami Nor to consider the gen'l Incon-
venience of allowing such Power to a Prochein Ami And the
Advantage to the Infant by having Suit brought seemed to
weigh much
OCTOBER COURT MDCCXXXVII.
Farrow ag't Farrow. Cane.
Abraham Farrow Father of the Pit. & Deft, being seised of
divers Lands by his Will devises them among his Children &
afterwards purchases Lands of one Barton which both before &
B262 VIRGINIA COLONIAL DECISIONS
after he bought it he declared he intended for his Son Abraham
(the Pit.) whom he seated upon it And the Pit. has made Im-
provements The Father in his last Sickness procures a Promise
from his eldest Son (the Deft.) [244] to convey this Land to the
Pit. And this Bill is brought to compel a Conveiance accordingly
The Promise is confessed by the Deft, but sworn by him to be
made upon an Apprehension that his Father had no Will he
having declared some few Days before that he had none Only
two Papers containing Pieces of Wills Neither of which he
liked & would alter them or make a new Will One of these
Papers is since established as the Will By which Deft, has a very
slender Provision only 750 A. of poor Land & the Reversion of
200 more & not a Penny of the personal Estate appraised to
500;^. whereas Pit. has Lands to 3 Times the Value exclusive
of Bartons besides Slaves & other Estate So that Deft, is almost
disinherited When the Will was in Contest Pit. proposed to
Deft, to release his Right to the Manner Plantation ab't 200 A.
not so valuable as Bartons w'ch is given to Pit. by the Will if
Deft, would convey Bartons Land to him This Deft, agreed to
But after the Will was established Pit. claimed both & refused
to stand to his Agreement For which Reason Deft, not believing
it was his Father's Intention that Pit. should have Bartons Land
& the Manner Plantation too brought an Ejectm't in the County
Court for Bartons Land & had Judg't to recover
The Equity set up by the Pit. in Order to have a Conveiance
of the Land in Question is founded 1. Upon the Fathers de-
claring both before & after the Purchase that he designed the
Land for the Pit. 2. Upon the Defts. Promise to his Father
when sick to convey it I shall consider both these Points ab-
stracted from the Circumstances appearing in this Case And-
see what Effect or Operation they have at Law Then I will
enquire how far a Court of Equity will interpose in Cases of this
Nature And afterwards consider this Case in all its Circimistances
After which I hope it will be no difficult Matter to convince
the Court that the Pit. ought not to be relieved
The Fathers Declaration if it can operate at all at Law so as
to convey any Estate to the Son must be as a Covenant to stand
seised And so it would had it been committed to Writing but
being only by Parol it cannot operate as a Cov't to stand seised
which being a Conveiance to Use cannot be good unless put in
Writing for no Use can be raised by Parol So is Callard &
II
II
BARRADALL'S REPORTS B263
Callard 2. Ro. A. 788. Mo. 687. ** The Father being upon the
Land says to his Son I do here reserving an Estate for my
own & my Wife's Life give unto thee & thy Heirs forever
** these my Lands &c.*' In this Case it was adjudged that no
Use could arise to the Son being by Parol And the like Point is
adjudged in 1. Sid. 26. Hore & Dix & [245] 82. Foster & Foster
— But this ex abundanti The Laws of this Country are express
that no Estate in Land pass but by Deed So that this Decl.
can avail nothing at Law.
Then as to the Defts. Promise to his Father there being no
Cons, to induce that Promise it is void in Law. There is no Rule
of Law more universally known than Ex nudo pacio non oritur
actio I need say no more since the very bringing of this Suit is a
Confession that the Pit. is without Remedy at Law
I shall proceed then to consider how far a Court of Equity
will relieve in Cases of this Nature And 1. As to the Fathers
Decl. This it is sayed sufficiently shews his Intention that the
Pit. should have the Land which to be sure cannot be denied
But then that Intention I humbly conceive is not suffic't alone
for a Court of Equity to make a Decree upon A Mans Intention
to do an Act without the Concurrence of those Forms &c. Cir-
cumstances which the Law requires is of no Signification at all
As may be illustrated by various Instances If a Man makes a
Will & declares an Intention to revoke it but does not actually
revoke it This Intention will not amount to a Revocation So
if a Man devises his Land by a Nuncupative Will or in England ^
makes a Will in Writing And there is but one Circumstance or
Formality required by the Statute of Frauds wanting Or if a
Deed be signed & sealed but not delivered In all these Cases the
Intention is apparent but yet a Court of Equity will not relieve
From these Instances & many others that might be named it
is evident that a Mans Intention alone is not a suffic't Ground
or Foundation for a Court of Equity to make a Decree In the
Case of Callard & Callard cited supra the Fathers Intention was
plain to give the Land to his Son Yet that Intention not being
manifested according to the Forms of Law nothing passed Nor
do we read that the Son attempted to support this Gift in a Court
of Equity Indeed I am yet to learn if there be any Case where a
Court of Equity has decreed an Heir to convey meerly upon the
Intention of his Ancestor to give the Land to another The
Argument is as strong & the Case equally equitable- where the
B264 VIRGINIA COLONIAL DECISIONS
Ancestor devises Land by Will without Writing that the Heir
should be compelled to convey to the Devisee The Intention is
sufficiently evident but there never was an Instance of that kind
I can venture to affirm
The Case of Clavering a Clavering 2 Vem. 473. is a very strong
one to prove that a Mans Intention alone without the Concur-
rence of those Forms & Ceremonies which the Law for very wise
Ends has appointed to the Consummation of every [246] Act
is not a suffic't Reason for a Court of Equity to interpose &
interrupt the Course of the Law. The Case was thus *' Sir Ja's
** Clavering made a Settlem't in 1684. under which the Deft.
** claimed In 1690. he made another Settlement without any
** Regard to that of 1684. under which the Pit. claimed There
** was no Power of Revocation in the Deed of 1684. but it was
** in Proof that the Deed was not published or delivered out by
** Sir James & was found among his wast Papers at his Death
** That the Deed of 1690. was often mentioned by him as the
** Settlement of that Estate & so indorsed with his own Hands &
*' he told the Ten'ts the Pit. was to be their Landlord." But
notwithstanding all these Circumstances to favour the Settlem't
of 1690. & tho* Sir James's Intention was very plain & evident
Yet no Relief could be had ag't the Settlement of 1684. In
which there being no Power of Sir Ja's could not resume the
Estate whatever his Intention or Inclination might be
There is indeed a very great Difference between Conveiances
made to a Purchasor for a valuable Cons. & voluntary Con-
veiances without any Cons, at all In the first if there be any
Defect in Point of Form or Ceremony a Court of Equity will
always interpose & compel a perfect Conveiance according to the
Agreem't of the Parties but in the latter Equity scarce ever
intermeddles [Except in some special Instances where Cred'rs
or younger Children are concerned 2 Vent. 365. IVem. 37, 38.
40.] (a)
(a) See 2 Sal. 416.
They are left to their Operation at Law and valeant quantum
valere possunt is the Rule for Equity will not assist them And
this Difference is well founded both in Reason & Justice In
the Case of a Purchase there is a meritorious Act on the Part
of the Purchasor viz. the Paiment of the Cons. And natural
Justice requires that he should have a good Title made to him &
not lose his Purchase for Want of a meer Ceremony But in the
BARRADALL'S REPORTS B265
Case of a voluntary Gift there is no Merit in the Donee. It is
from the meer Favour of the Donor that he has any Thing
And therefore he must take the Gift as it is for better or worse
Equity will not stretch to assist him Especially against an Heir
whose Right & Title are favoured both in Law & Equity
Had the Ancestor then in this Case gone much further than
.he has done Had there been a Deed actually executed but that
was imperfect for Want of some Circumstance As if there had
been a Feoffment without Livery Even in such Case the Con-
veiance being voluntary a Court of Equity I conceive would not
compel the Heir to perfect it but would leave the same to its
Operation at Law Much le^s then ought this parol Decl. to be
assisted ag't the Heir 2 Ch. Ca. 133, 134. 1 Vern. 37, 38.
I come now to speak to the Defts. Promise made to his Father
[247] to convey this Land to the Pit. his Brother without any
Regard to the Circumstances attending it This Promise as I
have already observed is void in Law being made without any
Cons. And I conceive it is void in Equity too At least I can
safely say I never yet read or heard of an Instance where a
Court of Equity compelled a Performance of a Promise of this
sort It is nattiral Justice that there should be Quid pro qtio
And where there is not Promises of this kind will fall within the
Rule & Reason of voluntary Conveiances. They must operate
as they can at Law for they are never assisted in Equity It is
indeed a Rule that Equity will not relieve ag't a Maxim of the
Comon Law And it is a Maxim Ex nudo pacto tton oritur actio
From what has been sayed I hope it is pretty evident that the
Pretences set up by the Pit. to intitle him to a Conveiance of the
Land in Controversy from the Deft, have no solid or equitable
Foundation taking them in the most favourable Light for the
Pit. But when the Circumstances attending this Case are con-
sidered which I must now beg Leave to speak to I believe it will
appear that there is as little Honesty as Equity on the Pits. Part
And extreme Hardships on the Defts. if he shall be compelled to
convey this Land
It has been opened that at the Time the Deft, made the
Promise to his Father to convey the Land to the Pit. he appre-
hended there was no Will His Father told him so In the Event
it falls out there is a Will by which the Pit. who is a younger Child
has more than three times the Estate given him than is given to
the Deft, the Heir at Law Is there any Reason or Justice then
B2W VIRGINIA COLOXIAL DECISIONS
that any Thing more should be done for this younger Child &
th': Heir be quite disinherited tho' it does not appear he ever
offended his Father or gave him any Cause to disinherit him.
Was this younger Child unprovided for there might be some
Appearance of Equity. But when he is so amply provided for &
will at all Events have jl better Estate than the Heir Surely
there can be no Reason that a Court of Equity should lend any
Assistance to disinherit an Heir under such hard Circumstances
& against a constant & estabHshed Maxim that the Heir is to
be favotired. See 2. Sal. 416.
But after all it is somewhat surprising that a Man should
come into Equity to compel the 'Performance of a Promise
altogether voluntary And at the same Time refuse to perform
an Agreem't on his Part that is really more than voluntary
And such an Agreem't as I conceive a Coiui; of Equity ought to
compel the Performance of The Deft, in his Answer swears that
when the Will was in Contest the Pit. proposed to him to rel.
his Right to the Mann'r Plantation if he would convey Barton's
Land to the [248] Pit. And this was agreed to by the Deft, tho'
the Mann'r Plantation is not near so valuable as Bartons This
Agreem't is likewise proved by a Witness who heard the Pit.
acknowledge it But see the Justice & Honesty of the Pit. as
soon as the Will is estabHshed he flys from this Agreem't refuses
to perform it And now he will have Bartons Land & the Mann'r
Plantation too It is a Maxim He that will have Equity must
do Equity And surely it is equally reasonable & equitable that
the Pit. should perform his Agreem't as that the Deft, should
perform his I beg Leave to observe the Justice of the Deft, in
this Agreem't He had all the Reason in the World to beUeve
from what his Father told him that the Will would not be estab-
lished & then the Mann'r Plantation had descended to him Yet
he is content upon the Pits, releasing this slender Prospect of
a Right to comply with what he took to be his Fathers Intention
for he swears he does not believe his Father intended that the
Pit. should have Bartons Land & the Manner Plantation too Nor
is it reasonable to suppose he should intend to leave his Heir
who had never disobliged him without a House to put his Head in
It may be objected perhaps that the Pit. when he made this
Agreem't was doubtful of his Right to the Mann'r Plant'n
That if he had been sure the Will would be established he would
not have made it Such an Argument may be a Proof of the
BARRADALL'S REPORTS B267
Pits. Cunning but not of his Honesty But to obviate the Force
of this Obj. if there is any in it that an Agreem't founded upon
a Mistake that is where a Man thought he had not a Right when
he really had is binding in Equity ** A Man seised of Freehold
** Lands in tail with Rem'r to his elder Brother & of Copyhold
** Lands in Fee devises the Freehold Lands to his younger
** Brother & the Copyhold to his elder Brother And the Devisees
** agree that the Lands should be enjoied by them accordingly
" And this Agreem't was established in Equity Tho* it appeared
** that the elder Brother thought the Intail of the Freehold
*' Lands was docked And the younger Brother to draw on the
** Agreem't made him believe so when in Truth it was not*' 1 Ch.
Ca. 84. Frank a Frank
This Case I think is a full Answ'r to any Obj. that may be
made that the Pit. when he made this Agreem't did not know
his Right But the Obj. is really ridiculous in this Case & must
turn upon the Pit. Since we may likewise object that the Deft,
did not know he should lose Mann*r Plantation when he promised
to convey Bartons [249] to the Pit.. There remains not then in
my humble Apprehension the least Pretence why the Pits.
Agreem*t should not be enforced as well as the Defts. Promise
made under the Circumstances appearing in this Case If the
court should be of Opinion that the Pit. ought to be relieved at all
But after putting the Deft, to all the Trouble & Charge he
has done and refusing to perform an Agreem*t proposed by
himself for settling this Difference between two Brothers And
an Agreement that in Equity as I conceive he is bound & com-
pellable to perform I hope the Pit. is intitled to no extraordi-
nary Favour But as it is a Case without Preced't that ever an
Heir has been compelled to perfect a defective voluntary Con-
veiance or to perform a Promise made without any Consideration
& upon a Misapprehension too And the Case in all its Circum-
stances is extreme hard upon the Deft. I hope the Pit. will have
no Relief at all but that his Bill will be dismissed
And upon Hearing in October 1737. the Bill was dismissed
by the Opinion of the whole Court
Hawkins a Bongham &c.
The Question here was the same as in Hawkins & Thornton
ante 227 — And Judgment was again given for the Pit. by the
B268 VIRGINIA COLONIAL DECISIONS
Opin. of Lee, Tayloe, Randolph, Custis, Grymes, Carter, Digges &
Byrd — Robinson con. — So Byrd changed his Opinion
But the Defts. appealed
APRIL COURT MDCCXXXIX
EwELL Heir of Ewell ag't Miller & his Wife Adm'rx of Myars
The Pit. declares in Cov*t upon a Deed from the Intestate to
the Pits. Father dated in 1708. whereby in Cons, of 150 £. he
sells to him certain Lands & covenants to warrant defend save
harmless [250] & keep indemnified the said Land to the Grantee
ag't all & every pson & persons whatsoever that should thereafter
make any Claim or pretend any Title And avers that the Estate
[sic] or the Defts. have not defended saved harmless &c. (in
the very Words of the Gov't) And that so the Intestate or the
Defts. have not kept the Gov't of the Intestate but broke the
same
The Defts. plead that the -Pit. & his Fa'r from the making of
the Deed to the bringing of this Suit have peaceably enjoyed
without the Molestation Interruption or Hindrance of any pson
w'tsoever
The Pit. replies that the Intestate & his Wife were seised in
Right of the Wife & made the Deed af'd which they acknowledged
but there is no Record of her privy Examination And that so
the Intestate or the Defts. have not defended saved harmless &
kept indemnified the said land ag't the Claim & Title of the Wife
And to this Repl. the Deft, demurs
I think I might with Reason in this Case find fault with the
Declaration for that the Assignment of the Breach is too general
And also with the Repl. as it is no Answer at all to the Defts.
Plea Inconsistent upon the Face of it & a Departure from the
Decl. as I think But I will wave all cavil & Exception to the
Pleading And confine myself to speak to the Merits of the Cause
alone by endeavouring to shew that taking this Case as it appears
upon the Pleadings there is no Breach shewn of the Gov't upon
which the Pit. declares
The Case upon the Pleadings is in short this A Man & his
Wife seised in Right of the Wife sell & convey Land by Deed
which they ackn. but there is no Record of the Wifes Exam.
There is a Gov't in the Deed to warrant defend save harmless &
keep indemnified the Land ag't the Claim & Title of all psons.
BARRADALL^S REPORTS B269
This Deed has been made almost 30 Years And the Pit. & his
Father have peaceably enjoied without the Claim or Disturbance
of the Wife or any other ever since And the Question I take it
properly is
Whether the Pit. can maintain an Action on the Gov't to
warrant save harmless &c. because the privy Exam, of the Wife
is not rec'o for that is all the Breach assigned
The very State of the Question in my humble Opinion shews
the Absurdity & ill Ground of the Pits. Action for where is the
Sense or Propriety to say we have not warranted saved harmless
&c. because the Clerk omitted to rec'o the. Wifes Exam An act
not in our Power to compel him to And which [251] it was the
Business of the Purchasor to look to Especially when it is not
pretended that the Pit. has at all suffered by this Omission but
it is admitted that the Wife has never disturbed him He &
his Father have had quiet Possion these 30 Years Cov'ts are
to be considered. 1. According to the Force & Operation of the
Words in Law 2. According to the Intention of the Partys
Now a Cov't in these Words To warrant &c. have no further
Operation in Law than to subject the Covenanter to make good
all Damages that the Covenantee sustains by Reason of lawful
Evictions Sr. E. Cokes Opinion in 1 Br. 2L is express that in a
Cov't to warrant & defend there must be a Title paramount &
a lawful Eviction before an Action will lie So that a Title alone
with't Eviction will not do And there is this plain Reason for it
perhaps the Title may never be exerted The Case of Foster
a Wilson in On. 100. proves the same Point as to the Words
save harmless & indemnified A Man made a Lease & covenanted
to save harmless ag't P. B. In an Action of Cov't the Breach
assigned was that P. B. entered & ejected him but not sayed
with Title And it became a Question whether the Covenanter
was to indemnifie ag't all Entrys of P. B. whether by Right or
Wrong And a Difference is there taken & settled that where a
Cov't is gen'l ag't all psons there it shall be extended only to
Evictions with lawful Title but where it is special ag't A. B.
there it shall be extended to all Evictions of A. B. either rightful
or wrongful Which fully proves there must be some Eviction
before an Action will lie
But the Case of Griffith a Harrison 1. Sal. 196. is more express
in the Point A Man assigned a Lease & covenanted to keep
indemnified ag't all Arrears of Rent There was Rent in Arrear
B270 VIRGINIA COLONIAL DECISIONS
but the Pit. had never been sued for it Yet brought an Action
on this Cov't And adjudged the Action would cot lie For in all
Gov'ts to save harmless there must be an actual Damnification
before there can be saved to be a Breach To apply this Case
Here they say the Wife not being exam'd her Title is lying out
ag't them 8c they are liable to be e\-icted which is true But they
ne'/er have been evicted or disturbed these 30 Years Therefore
the Pit. is not damnified What Right then has he to this Action
Another strong Case & which seems the very parrallel of this
is Grocock a White Mo. 175. Debt on Bond with Condition to
save harmless & defend certain Land ag't J. S. & all others
The Deft, pleaded as we have done that the Pit. was never law-
fully disturbed The Pit. demurred And adj'd for the Deft. [252]
that the Plea was a good Bar Indeed it was not so much as
pretended that the Action would lie with't some Disturbance
but the Question & Doubt was upon the Word lawfully Whether
th'; Obligor was not obliged to defend ag't unlawful as well as
lawful Disturbance Now here we have pleaded the Pit. never
was disturbed at all without distinguishing between law-
ful & unlawful Disturb'a And so our Case is stronger it being
admitted that the Pit. never has been disturbed at all
These Cases I hope fully prove that there must be an Eviction
or other Damnification before a Man can have an Action on a
Cov't of this kind Indeed if there were no Authoritys in Law
The Reason of the Thing in my Opinion speaks plainly enough
Shall a Man have an Action before he is injured And when per-
haps he never may be What Rule or Measure can there be for
a Jury to assess Damages The Chancery indeed by an extraordi-
nary Power will sometimes allow of a Bill qui a timet as it is
called because the Pit. is apprehensive of Danger but I never jxt
heard of such an Action at Law. In Chancery it is only to have
Security but here Damages must be given for a Thing that may
or may not happen & before the Pit. has suffered any Wrong or
sustained any Damage
And as it is very clear that this Action cannot be maintained
form the Force & Operation in Law of the Words of this Cov't
So there is as little Reason to support it from any supposed
Intention of the Partys But upon Cons, of the whole Deed I
think it is evident there co'd be no such Intention in making
this Cov't Because there is another proper Cov't to provide ag't
any Defect in the Conveiance (as this Circumstance of the Wife
BARRADALUS REPORTS B271
not being exam'd must be allowed to be one) And that is a
Gov't for further Assurance This is an usual Gov't in Deeds &
inserted for the very Purpose in Gase there be any Defect in the
Gonveiance to compel the Grantor to perfect it But the Pit. has
not thought fit to ground his Action upon this Gov't perhaps
for a Reason that I shall have Occasion to remark presently But
this Gov't for furth'r Assurance is I think a full Demonstration
that it was not the Intention of the Partys in making the Gov't
the Pit. has declared upon to subject the Govenantor to an Action
for any Defect in the Gonveiance or because the Wife was not
privily exam which is the Breach assigned
I cannot well imagine then what can be offered on the other
Side to support this Action It may be sayed indeed that nothing
passed out of the Woman by the Deed & her Title lies [253] out
ag't them I have I hope clearly shewn that the Title lying out
signifies nothing unless there is an Eviction or at least some actual
Damage suffered And I will beg Leave to add that perhaps the
Woman never will disturb them Or if she should it may be
to little Purpose their Possion of 30 Years may be a good Bar
to her Title by the Act of Limitation The Husband I believe
has been dead above 20 Years & she must sue within 10 years
after her Discoverture & can have no Advantage of a 2d Disa-
bility If then the Pit. has a good Title ag't the Wife which may
be true ought he then to recover Dam's in his Action Or if
the Wife or her Heir never sues there is as little Reason Besides
as I have observed it is impossible for a Jury to tell what Damages
ought to be assessed
Perhaps the Woman is ready to make a better Gonveiance &
to rel. her Right & Title Ought the Pit. then to recover at
least he sho'd have asked her before he had sued And if she had
refused a good Action would have lain tho' not on the present
Gov't as I conceive but upon that for futh'r Assurance But this
would not answer the Pits. Purpose so well who after using the
Land for 30 Years whereby it is become of little Value possibly
would now rather have his Gons. Mony again by Way of Dam's
than have a good Title made to him And this I believe was the
true Motive to bringing this Suit But as it has no Foundation
either in Law or Justice I hope Judgm't will be for the Deft.
For the Pit. It was argued that if a Man lay open to an Action
or if the Damnification was certain & inevitable an Action would
lie before actual Damnification That the Wifes Title was lying
B272 VIRGINIA COLONIAL DECISIONS
out & she -wouM certainly recover And it wctLid be inconvenient
that they should wait till the Wife sued becaxise in the mean
Time the Estate might be ail administered Tne foil. Cases were
c-ited Bush a Ridgle^r Cro. EL 2tA. 5 Co. 24. Bronghtons Case
3 BuL 2.'j3- Abbotts a Johnson & Sr. Antho. Maynes Case 5 Co.
2L But Judgment was given that the Demurrer was goc<i per
totam Curiam. April 1737.
[254] APRIL COURT MDCCXXXVIII.
Leg AN Lessee of R'd Bernard Pit.
Washington Parish. Dishman, Weedon, John & Wm. Brown
Defts. In Ejectment
This Suit being brought to settle the Pits. Boimds with some
of the Defts. And to try his Title with others There has been
a Survey in the Country & a Trial at the Bar there The Jury
have given a special Verdict Upon which the Case is In 1651.
a Pat. was granted to Ann Bernard for 1000 A. of Land And in
1054. Another Pat. for 1500 A. including the 100 A. Under which
the Pit. claims Ann Bernard died seised & the Premes descended
to her Son R'd Bernard who died in 1691. ha\'ing by his Will
devised the same to his Sons Philip & John John had the whole
by Survivorship & died in 1709. having by his Will devised to his
Son the Lessor of the Pit. who is also his Heir & was 25 Years
old when this Suit was brought.
In 1689. John Bernard the Grandfa'r who lived in Glouc'r
Richard? (different hand) W. W. S.
made a Letter of Atto. to William Buckner to sell Part of this
Land And in 1691. Buckner for a small Cons, takes upon him
to sell two Parcels to Tho's Weedon & Alex'r Shairs Under
whom the Defts. Dishman & Weedon claim These Deeds are
made in the the Name of Buckner himself & not in the Name
of Bernard who indeed was dead before the Date of them Dish-
man & Weedon have been in quiet Possion from the making of
these Deeds to the bringing of this Suit And died seised before
the Suit was brought in the Life time of the Pits. Father There
is no Title at all for the other Defts. Except w*t they can derive
from Possion proved by sev'l Depcons which are found by the
Jury tog'r with the Survey'rs & Jurys Report in the Country
BARRADALL'S REPORTS B273
And the Jury further find that the black Lines in the Surveyor's
Plat are the true Bounds of the Pits. Pat.
The Bounds being thus settled the Court will not I presume
suffer that Matter to be brought again into Dispute The Points
then arising upon this Verd't are 3. 1. Whether the Defts.
Dishman & Weedon have a good Title under the Deeds from
Buckner If not Then 2. Whether the Grantees in those Deeds
d)ring seised in the Life of the Pits. Father will avail any Thing
3. Whether the Possion of any of the Defts. will give them a
Title or bar the Pit. from bringing this Suit
I shall begin with the Title of Dishman & Weedon And I con-
ceive the Deed from Buckner as Attorney of our Grandfa'r is
void for 2 Reasons 1. Because it is not made in the Name of
the Principal but of the Attorney himself 2. Because the
Principal was dead before the Deed was made And consequently
the Attorneys Power determined Co. Lit. 52. a. b. [255] As to
the 1. It is a known & settled Rule that when a Man has Author-
ity given him as Attorney of another to do an Act he must
do it in the Name of the pson who gives the Authority for the
Attorney is in the Place & represents the pson of his Principal
Co. 9. 76. b. Combs Case. This is proved by the gen*l Form
of Letters of Attorney which runs as indeed the Letter of Attorney
in this Case does For me & in my Name to make seal &c. But
there are besides sev'l adjudged Cases in Point
Q. if not good either way Vid. 1. Sal. 96.
The King by Lres Pat. gave Authority to his Surv'r to make
Leases The Surv*r causes a Lease to be made betw. the King
of the one Part & I. S. of the other Part Concluding In Testi-
mony whereof the sd. Surveyor put his Seal This Lease was
adj'd void because the Surv'r put his own Seal & not the Kings
whose Attorney he was And without the Kings Seal it was not
his Lease Mo. 70. 71
Sr. Thos. Dabridgcourt obtained a Decree in Cane, ag't Sir
Antho. Ashley for 1000;^. Sr. Thos. made a Lre of Atto. to his
Son to compound the Suit which he did for 200 Marks & made
a Rel. to Sr. Antho. in his own Name This Rel. was ruled in
Cane, to be void because not made in the name of his Father
Mo. 818. And a like Case is there remembred of Leases made
by Sr. Francis Walsingham as Atto. of Sr. Philip Sidney in his
own Name which were likewise ruled to be void in Cane.
B274 VIRGINIA COLONIAL DECISIONS
The Reason upon which these Cases stand I take to be this
That every Authority delegated to another must be strictly
pursued. Otherwise it is void 1 Inst. 52. a. 258. a. And as in
the Cases cited the Authority given was to make Leases in the
Name of the Constituent That Authority was not pursued
Which is the very Case here. The Deeds are made in the Name
of Buckner the Atto. The Authority given is to sell & the Deeds
" for me and in my name and as my Act to deliver " So that
the Atto. not having pursued his Authority his Act i. e. these
Deeds are void (a) But they are also void for another Reason viz.
(a) Bac. Abr. 204. 3 Bal. Abr. 403.
2. That Bernard the Princ. was dead before the Date of the
Deeds And so the Authority w'ch Buckner had as Atto. was
determined This is so plain from the Reason of the Thing as
well as express Authoritys in Law that it would be mispending
Time to say much on the Subject Lit. S. 66. puts a Case of a
Feoffment & a Lre of Atto. to make Livery There if the Feoffor
dies before Livery it cannot be made afterwards For which
he gives this one plain Reason because after his Decease the
Right of the Lands is forthwith in his Heir or some other This
Case put by Litt. is stronger than that before us for here is no
Deed executed only an Authority given to make a Deed in his
Name And therefore I will beg Leave to add to the Reason of
Littleton another of my own viz. that it is impossible the Author-
ity should be pursued [256] because the Deed must be made in
the Name of the Princ. which cannot be after he is dead I
might add further that in this Case the Lands are devised And
the Devise taking Effect immediately upon the Death of the
Testor was a Countermand in Law of the Authority given to
his Attorney in the same Manner as making a 2d Lre of Atto.
is "a Countermand or Revocation of a former Sr. Ed. Coke in
his Commentary 52. b. has adopted this Doctrine of Littleton
And adds that a Letter of Atto. to make Livery after the Death
of the Feoffor is void From whence it follows that it was not
in the Power of Bernard to impower Buckner by Lre of Atto.
to sell the Land after his Death if he had it in his Intention (which
does not appear) tho* with*t Question he might have given him
such Power by his Will I shall then take it for granted that
the Deeds from Buckner to Weedon & Shairs are void And that
nothing passed to the Grantees And then the
BARRADALL'S REPORTS B275
2. Point in the Case & w*ch concerns the Title of these Defts.
only is Whether the Djring seised of Weedon & Shairs the Grantees-
in the Life of the Pits. Father will avail anything
The Finding in this Case is so odd that I am forced to guess at
the Meaning of it but I suppose it may be insisted that a Descent
takes away an Entry Admitting which I answer It is not found
there was a Descent from Weedon & Shairs to their Heirs Only
that they died seised which they might do & the Land not
descend for they might devise it away or a Stranger might enter
after their Death & abate And in either Case the Dying seised
will signifie nothing for it is the Descent & not the Dying seised
which takes away the Entry For illustrating this I must beg
Leave to consider a little the Law on this Head In Judgment
of Law the worthiest Means of coming to an Estate is by Descent
& therefore the Law has annexed to it divers Privileges particu-
larly this we are now speaking of that a Descent shall take away
an Entry The Meaning of which is that where a pson comes
to an Estate by Descent There tho' another has a good Title
he shall not be allowed to enter upon the Heir who is in by
Descent but shall be put to his Action to recover (Lit. S. 385.)
that is a Real Action for I shall agree if our Entry is taken away
We cannot maintain an Ejectm't But here it is only found
that the Grantees of Buckner died seised Not that there was
any Descent And as one might well be with out the other I con-
ceive this Dying seised avails nothing at all it does not take
away the Pits. Entry
But there is still another Obj. viz. that it does not appear
when these Grantees died seised Only that it was in the [257]
Lifetime of the Pits. Father Now he was an Infant when his
Father died in 169L & continued so for many Years dying a
young Man tho' 18 Years after his Fathers Death And if the Pits.
Fa'r was an Infant at the Time of the Descent (admitting there
really was a Descent in the Case) such Descent would not take
away our Entry For the Law ever careful of the Rights of Infants
will not suffer that they shall be prejudiced by any Thing that
happens during their Nonage In all our Acts of Limitation
there is a Saving to the Rights of Infants And so in all Cases
at the Common Law where Time or any Act in Law will take
away a Right there is an Exception to the Case of Infancy as
in this of a Descent taking away an Entry & many others Litt.
S. 402. Now as the Pits. Father might be & probably was an
B276 VIRGINIA COLONIAL DECISIONS
Infant when this pretended Descent happened It signifies
nothing at all If the Defts. will say he was not under Age I
answer it was incumbent upon them to have that found in the
Verd't According to a late Resolution in this Court between
Ivey & Fitzgerald upon an App'l from Nansemond It was in
Apr. 1736. (ante 176; The Case was in Eject m t upon a special
Verdict where in a Descent was found Which I insisted took
away the Pits. Entry But J. R. argued that we could have no
Advantage from that unless it appeared that the Pit. was under
no Incapacity at the Time of the Descent And that it was in-
cumbent upon the Deft, to shew it if he would take Advantage
of such Descent Of which Opinion the Court was & Judgm't
given accordingly And this being a parrallel Case I hope the
Court wil be of the same Opinion
I am now come to the 3. & last Point & which is the great
Question of the Case Wheth'r there has been such a Possion
in any of the Defts. as will give them a Title or bar the Pit. of
his Entry.
The Possion of the Defts. Dishman & Weedon has been under
the Deeds I have been speaking of But as to the other Defts.
The Parish & the Browns It does not at all appear how they
first came into Possion They show no kind of Title either by
Grant from the Crown or any of the Pits. Ancestors Or that
the Land in Controversy is within the Bounds of any such Grant
But all the Title they have to rely upon is barely Possion In
speaking therefore to this Point it may be necessary to shew 1.
That such a Possion as this in Controversies about Bounds has
not been usually favoured in this Court Or 2. If it has That we
are not barr'd in this Case by the Act of Limitation and conse-
quently that no Possion tho* ever so long can avail the Defts.
But first I must beg Leave to state the Facts relating to this
Question
I shall admit the Possion of the Defts. to be the strongest
the Witnesses speak of viz. 50 Years tho* they say between 40 &
50. I must observe that so long as 1673. the Pits Grandfa'r
comenced a Suit ag't one Horton Under whom the Parish claims
for settling the Bounds of the Land now in Contest This Suit
by the artifices of Horton [258] was protracted till the Year
1686. when it was dismissed without any Judgm't because it
had been so long depending This Period falls in very near with
the Time the Witnesses say the Defts. have been in Possion
BARRADALL'S REPORTS B277
A few Years after this in 1690 or 1691 our Grandfa'r died having
devised to his 2 Sons Philip & Jn'o both Infants John had the
whole by Survivorship & died a young Man in 1709. leaving the
Pit. an Infant who brought this Suit before he was 25 Years old
ab't 8 years ago I think And in this Suit the Defts. have used
all the Chicanery & little Arts they could devise to delay it
Under this View of long Suits protracted by the Arts of the
Defts. And the Infancy of the Pits. Father & himself This
Title the Defts. would build upon Possession must appear to be
very indifferently founded Since every Possion that can give
a Right must be peaceable & uninterrupted And there must be
no Incapacity in the Party who has a Right to claim or enter
But as to this Point of Possion with Respect to Bounds I never
understood in all the Determinations I have beard in this Court
Any other Regard was paid to it than as it was a presumptive
Evidence of Right in Cases where perhaps there was no other
certain Rule of Determination For Instance in the Case of Lands
adjoining to each other claimed under different Patents It is
a known Thing that in most of the old Pats, the Bounds are
described with so much Incertainty and often Contradiction
that it is next to impossible to determine from thence what the
true Bounds are or ought to be And therefore as the best Guide
& Rule in such dark & perplexed Controversies the Court have
generally settled the Bounds according to the ancient Possion
where it has appeared to be peaceable & uninterrupted But
where the Bounds of a Pat. are certain & evident & any pson
has encroached within those Bounds without any kind of Title
I believe no Instance can be given of a Determination in this
Court that a Possion of this kind without more should give a
Title Much less where there have been continual Controversies
& Disputes or Incapacities in those who had the true Right &
Title as appVs to be the Case here Indeed it would be utterly
inconsistent with the Spirit of our Law to determine that Possion
should give a Right where there are Incapacitys in the Persons
that should claim I have had Occasion already to observe the
great Care both the Statute & Common Law have always taken
of Infants Rights And it is the same with Respect to other In-
capacities Nothing that happens during the Incapacity can
possibly hurt them And I will beg Leave to add that in natural
Justice there is no Reason why the longest Possessions hould
give a Right Since in the [259] Nature of Things a Wrong be-
B278 VIRGINIA COLONIAL DECISIONS
comes only the more aggravated the longer it has continued.
Institutions of this kind may be convenient for Society and
without Doubt are so. But then they ought to be confined to
the positive Law & carried no further And I humbly conceive
there is no positive Law in this Case No Act of Limitation
that will ban* the Pit. of his Entry or Action as I shall now
endeavour to shew
In speaking to this Point it may be necessary just to remember
the sevl Acts that have been made in this Coimtry that can any
way respect the present Question In 1662 An Act was made
Intitled Lands 5 Years in Possion (cap. 72) By this Act if a Man
having Right to Lands did not prosecute his claim within 5 Years
he was forever barred With a Saving however to Infancy & other
Incapacitys This was certainly a very severe Law but yet it
subsisted above 40 years till 1705 when an Act was made repealing
it & much to the Purport as to the Matter of Limitation with
that we now have But there being some Things in this Act not
approved of by the King It was repealed by Procl. as I have
been told And is also repealed in express Words by the Act of
1710. the only Act we now have as to this Matter [sic] And sup-
posing the Act of 1662 to be revived by the Repeal of the Act
of 1705. It is again repealed by the gen'l repealing Clause in
the Act of 1710.
This Act of 1710 then is the only Law now in Force respecting
the present Question for I presume it will not be pretended that
this Court can judge upon any Act that is repealed From whence
it will follow that the Possion of the Defts. before 1710. is quite out
of the Question And if the Pit. has pursued his Right within the
Time limited by this Act No Possion tho' ever so long can bar him
The Words of the Act so far as respects the present Question
are " That no Person or p. sons that now hath or have or which
hereafter may have any Right or Title of Entry into any Lands
&c. shall at any Time hereafter make any Entry but within
20 Years next after his or their Right or Title hath heretofore
descended or accrued or hereafter shall descend or accrue
Provided that if any P. son or P. sons that hath or shall have
such Right or Title of Entry be or shall be at the Time of such
Right or Title first descended accrued come or fallen within
the Age of 21 years Feme covert Non compos Imprisoned or
out of the Colony Such Pson may make his Entry within ten
Years after the Incapacity removed."
BARRADALL'S REPORTS B279
It is plain that the Makers of this Act had under their Cons. 2
Things viz. to provide for those Rights & Titles that had accrued
before the Act And for such as sho'd accrue afterwards As to
the first P. sons having such Rights are to make their Entry &c.
within 20 Years from the Time their Right first accrued But
if they were under Age or other Disability at the Making of the
Act [260] By the Proviso ten Years is given them after the
Disability removed to make such Entry The Words of the Act
are so extreamly plain they will admit of no Comment
Now in this Case the Lessor of the Pit. had a Right of Entry
at the Time this Act was niade Which accrued to him upon the
Death of his Father By the Enacting Part which has been read
he was to make his Entry within 20 Years from the Death of his
Father w'ch happened in 1709. But this he has not done But
then being an Infant when the Act was made he has by the
Proviso ten Years after his coming of Age And this Suit was
brought before he was 25. And so he is within the Time limited
by the Proviso Thus having made our Entry within the Time
limited by the Act of 1710 And there being no other Act in Force
whereby the longest Possession can bar us I apprehend it to be
extreamly clear that the Lessor of the Pit. is not barr'd by the
possession of the Defts. in this Case And as t is clear that we
are not barr'd by the Act of Limitation So I hope that the Possion
relied on by the Parish & the Defts. the Browns which is all the
Title they have will avail nothing under the Circumstances of
this Case And that the Defts. Dishman & Weedon have no Title
under the Deeds from Buckner And then Judgm't I presume
will be given for the Pit. for all the Land within the black Lines
determined by the Jury to be the true Bounds of his Patent
and I humbly pray Judgment accordingly —
There was no Argument made as to the Title of Dishman &
Weedon Nor any worth noting as to the other Points So
Judgm't was given for the Pit. for all the Lands within the black
Lines Apr. 1738
APRIL COURT MDCCXXXIX.
Nance ag't Roy.
In Detinue for a Slave upon a special Verdict the Case is
** John Nance possessed of the Slave in Question & others by
it
B280 VIRGINIA COLONIAL DECISIONS
his Wm dat. Feb. 2. 1731. gives to his Wife Mary " All his Estate
both real & personal All his Household Goods & Moveables
whatsoever during [261] her natural life " And makes her sole
Extrix Afterwards he devises away a Negro Girl & gives
some small Legacies but makes no other Disposition of the
Estate given to his Wife The Wife is dead having in her Life
time given the Slave in Question to one Perry from whom the
Deft, is a Purchasor for a valuable Cons. The Pit. claims as
Heir at Law of the Testator
The Sole Question in this Case is whether by the Devise for
Life &c. making the Wife Extrix the absolute Property of the
Testors Slaves vested in her Or whether the Pit. as Heir at Law
of the Testor is intitled to them after her Death
In Order to give this Question a proper Solution it will be
necessary first to see Whether Slaves in this Case are to be con-
sid'd as a real or personal Estate For that they participate of
the Nature of both & vary as the subject Matter is different
I think no Man can dispute For Instance when a Question is
made concerning the Slaves of an Intestate They are then without
question to be considered as a real Estate being to descend as
Lands of Inheritance in Fee But where a Question is made
concerning a Gift or Devise of Slaves There I conceive they must
be considered as meer personal Chattels '
That Slaves in their Nature are nothing more than Chattels
must be granted & were so for a long Time in this Country till
the Act of 1705. c. 3. which has altered the Nature of them &
made them a real Estate in some Cases Upon this Act there was
great Variety of Opinions & different Constructions Some
adhering too strictly to the Letter without a proper Attention
to the Spirit & Intention of the Act would have Slaves to be a
real Estate almost in all Cases tho' the plain & obvious Meaning
& Design of the Act was no more than to make them so where
a pson died Intestate The true Reason of making that Act & the
Policy of it being to prevent Widows & Adm'rs from running
away with the Slaves & to preserve them for the Benefit of the
Heir for the Improvem't & Cultivation of his Land A Policy
very necessary & expedient considering the Method of improv-
ing Lands here
And that this was the true Design & Intention of that Act,
We need only recur to the Act of 1727. c. 11. made for explaining
it which has so clearly settled every Doubt & Controversy that
BARRADALL'S REPORTS B281
had arisen or can arise upon the Construction of the first Act
that there cannot now well be any Difference of Opinion And
let any Man consider these two Acts tog'r & tell me one Instance
wherein Slave;$ are made a real Estate Except in the Case of
Psons dying Intestate I say nothing here of annexing Slaves
to intailed Lands as quite from the Present Ptirpose.
If then Slaves are to be taken as a real Estate in no other
Case but where the Owner dies Intestate it follows than when
they are made the Subject of a Gift or Devise they must be
considered meerly as Chatties Indeed the Words of the last
Act of Ass. are extreamly [262] plain that in every Case where
the Property is transferred from one to another that they shall
pass as Chattels The Clause I rely upon runs thus ** Whenever
any Pson shall by Bargain & Sale or Gift either with or without
Deed or by his last Will & Testament in Writing or by any
Noncupative Will bargain sell give dispose or bequeath any
Slave or Slaves Such Bargain Sale Gift or Bequest shall transfer
the absolute Property of such Slave or Slaves to such Pson
or Psons to whom the same shall be sold given or bequeathed
in the same Manner as if such Slave or Slaves were a Chattel "
Nothing can be more full & express than the Words of this
Clause And after reading it I think it would be taking up Time
impertinently to say any more Where a Slave is bequeathed it
shall pass the absolute Property as if such Slave was a Chattel
Here a Slave is bequeathed to one for Life And no Rem'r over
And if such a Bequest of a Chattel would transfer the absolute
Property It must likewise transfer the absolute Property of a
Slave
The Question then is Whether the Bequest of a Chattel to one
for Life with't limiting any Rem'r over & making the Legatee
Extrix will pass the absolute Property of such Chattel to the
Legatee
It is an old & established Rule of Law that the Gift of a
Chattel for an Hour is a Gift forever And tho* of late Rem'rs
over of Chattels (as we improperly term them) have been ad-
mitted Yet when the Reason of those Determinations are con-
sidered it will app'r that they do not break in upon this Rule
of Law The Law does in no Case admit of the Rem'r over of a
Chattel personal in the strict Sense of the Word Rem'r It is
true the Use may be given to one for a Time & the Property
limited to another Which Limitation of the Property is often
B282 VIRGINIA COLONIAL DECISIONS
called a Rem'r but improperly as I conceive For a RemV
ex vi termini is something that is left or remaining of a Thing
in Part disposed of before Now no Degree of Property passes
by the Gift or Devise of the Use of a Chattel If there did there
could be no Limitation over but the whole Property vests in
him to whom the Limitation over is made w'ch therefore cannot
with any Propriety be called a RemV If a Man by Deed gives
a Chattel to one for Life without limiting it over the absolute
Property will pass without all Question And so it will if he does
make a Limitation over For that is repugnant & void Because
by the Gift for Life the whole Property passes according to the
old Rule I have mentioned that the Gift of a Chattel for an Hour
is a Gift forever & nothing more remained to dispose of But
if a Man by Deed give the Use of a Chattel to one for Life And
after his Death to another Such Limitation over is good because
no Property passed to the first only the bare Use but the whole
Property vests in the latter In Wills indeed no Difference is made
whether the first Bequest be expressly of the Use or not if it can
be collected [263] from the Will that the Testor intended only
the Use And therefore a Bequest to one for Life & afterwards
to another is good for the first Bequest is construed to pass only
the Use And that for this very Reason because otherwise the
Limitation over could not be supported The Reason of this
Difference between a Will & Deed is that Deeds are construed
strictly according to the Words but in Wills a greater Latitude
is allowed & the Intention of the Testator will supply the Want
of Apt Words Upon which Ground it is that in the Case before
put where a Chattel is devised to one for Life & afterwards to
another that the first Devise is construed to pass only the Use
because otherwise the Testors Intention in making the Limita-
tion over would be frustrated & therefore to serve that Intention
& support the Limitation over such Constr. is made It is
plain then that the first Devise is construed to pass only the
Use meerly for the sake of supporting the Limitation over And
it as clearly follows that where there is no such Limitation nor
any other Clause or Words in a Will to shew that by a Devise
for Life the Testator intended only the Use should pass or to
make such Construction necessary That the Property must pass
by such Devise Construction must then be made according to the
legal Sense & Operation of the Words For it is a Rule in the
Constr. of Wills as well as Deeds that the legal Sense of Words
BARRADALL'S REPORTS B283
must be adhered to unless the Testators Intention be apparent
to give them another Meaning Now in the Devise before us the
Words of the Will are clear to pass the Thing itself & not the
Use " All my Estate both real & personal I give to my Wife
** during Life." There is no Limitation over or other Clause in
the Will to shew the Tester intended only the Use or to make
such Construction necessary And therefore to make such Constr.
would be contrary to all the Rules of Constr. before laid down
and must offer a manifest Violence to the plain Import & Mean-
ing of the Words which I conceive is never done unless from
other Parts of the Will it may be clearly implied that the Testa-
tors Intention was otherwise And it is apparent that in these
Determinations even in the Case of Wills that the old Rule of
Law is still preserved sacred & inviolate the first Devise is con-
strued to pass only the Use for if the Property once passed there
could be no Limitation over The Property of a Chattel can
never be in two Persons distinctly at the same Time but if it is
given only for an Hour it passes forever & nothing remains in
the Giver No Instance of Devise for Life passing only the
Use unless Rem*r over
But* admitting such a Construction should prevail which I
can hardly suppose that nothing more than the Use passed to
the Wife by the Devise to her for Life The next Question is
in whom the Property vested — Whether in the Pit. as Heir at
Law or in the Wife as Extrix And I conceive it vested in the
Extrix & not the Heir I have already proved I hope sufficiently
that Slaves are in no Case a real Estate discendible to the Heir
but where the Owner dies Intestate [264] and the Consequence
I apprehend is clear that wherever a Man by his Will disposes
of his Slaves in any Manner the Heir can have nothing to do
with them By such Disposition the Owner alters or rather
preserves the Nature of Slaves & makes them meer personal
Chattels Whenever a Slave is bequeathed it shall pass as a
Chattel says the Explanatory Act If then they are to be con-
sidered as Chattels as I humbly conceive they must in this Case
Then whatever Right or Property remained undisposed by the
Devise to the Wife for Life vested in her as Extrix It is a known
Thing that all Chattels go to the Extor & not to the Heir And
the very making of a Man Extor is in Judgment of Law a Gift
to that Person of all the Testors psonal Estate which all passes
to him & he has a Right to it unless otherwise disposed of by
B2S4 VIRGINIA COLONIAL DECISIONS
the Will Except in some Cases where the Extor is taken as a
Trustee for the next of Kin If then the Bequest for Life do's
not pass the absolute Property I hope that Bequest & making
the Legatee Extrix are suffic't to pass all the Estate the Testor
had
Obj. The Words of the Will are express to pass no more than
an Estate for Life That was clearly the Intention of the Testor
And that Intention ought to be supported & such Constr. made
as will support it
Resp. It is true that the Rule for Constr. of all Wills is the
Intention of the Testor But th^en this is to be understood under
some Restriction viz. that such Intention be consistent with
the Rules of Law For no Intention tho' ever so apparent can
pass an Estate or Interest either in real or personal Estate ag't
those Rules For Instance if a Man devise Lands in Fee & then
limits the same Land over to another The Limitation over is
repugnant & void It being ag't a Rule of Law that any Estate
sho'd be limited after a Fee So if a Devise be of Chattels to one &
the Heirs of his Body which Words create an Estate tail Yet
the Intail is void because it is ag*t a Rule of Law that a Chattel
should be intailed It avails nothing then as I conceive to say
the Testators Intention is apparent if that Intention clashes
with any Rule of. Law as it does in this Case Here is a Devise of
a Chattel to one for Life And no Rem'r over The Rule of Law
says the Gift of a Chattel for an Hour is a Gift forever And
therefore tho* the Intention be plain to pass no more than an
Estate for Life Yet inasmuch as such Intention is inconsistent
with that Rule I humbly conceive it cannot prevail ag't the Rule
And this I hope is a full & clear Answer to all that can be urged
from the Testors Intention in this Case
Obj. If a Term be devised to one for Life After the Death of
the Devisee it shall go to the Extor of the Devisor 1 Sal. 231.
Freeman's Rpt. 272.
[205] Eyers ag't Falkland. 1. Mod. 54. 55. S. P. per Twisden
And 2 Vern. 332. Where Chattels are devised for a limited Time
it shall be intended only the Use of them per Lord Keeper
And here Slaves being a real Estate after the Estate for Life
ended ought to go to the Heir Resp. The Case of a Term which
is a Chattel real & that of a personal Chattel as our Case is are
very different There may be a Rem'r limited of a Term by
BARRADALL'S REPORTS B285
Deed as well as by Will D. of Norfolks Case 3 Ch. Ca. 1. There is
also a Reversion in Chattels real which can never be in Chattels
personal for if the Property once passes it is gone forever & can
never revert i.e. come back again to the Giver But because there
is a Reversion of a Term Where it is given for Life it may come
back again to the Extor of the Devisor The Case of a Term
then is nothing to the present Purpose And as to the Saying
of the Lord Keeper (supra) it must be understood according to
the subject Matter The Case before him was a Bequest of
Chattels to me for Life with Rem*r over & the Question was
Whether the RemV over was good Says the Keeper where
Chattels are devised for a limited Time it shall be intended only
of the Use And therefore says the Reporter allowed the Rem'r
over to be good So that this saying of the Keepers plainly
can only be applied to Devises with a Rem'r over & is not to be
taken generally in all Cases Nor is there one Determination nor
even Opinion that I know of Where a Devise of a Chattel for
Life without any Rem'r over passes only the Use On the
contrary it is evident that such Devise is construed to pass no
more than the Use meerly for the Sake of supporting the Rem'r
over
But if this Case of a Term shall be thought any thing parrallel
Yet as Slaves here are not to be considered as real Est'a as I have
endeavoured to shew Then the Reversion vests in us as Extor
And so the Case of a Term is for us & not ag't us
Needier for the Pit. allowed the Question to be Whether the
Devise of a Chattel for Life passed the absolute Property And
insisted that only the Use passed & no Property by such Devise
Cited Clargis & D — ss of Albemarle 2 Vern. 245 He sayed it
was a gen'l Rule that a Devise for a limited Time passed only the
Use Hyde & Parrott 2 Vern. 331. And that where only the
Use was devised no Property passed only the Occupation for
where the Property first vested There he agr'd the absolute
Right vested Cited Ow. 33. Dyer's Opin. that the Devise of
the Use of Plate to one & the Heirs of his Body passed no
Property but the Devisee had only the Occupation. 1 Sal. 231.
Eyre & Falkland. Where a Man disposes of a Part of a Term
the Residue is in his Extor And sayed the Reason why there
was no Case of this Sort but where there was a Rem'r over was
because there never was in England a Devise of Chattels for Life
with't a Rem'r over
•^ *#J
■< -
\''\ i 7/' V- hi.i Htir Ar.'i ilirrr^ -r^s i* rzucii r±aaJ:ii i Eq^zrrj
*» ^* ^ ^ * — • •■ * V « ^ _
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t,^vi^, r.v a I>e'~-5^ r^r L:
^ The Liscs ciTai. c^r: cr
en n s £zr 1 :tL>r ihe Use
Ar-.-i it v; tr.at :n I>:er th-e Eievise there -arss exrresslv if the
fc^.r:^ tr.at Opin. T.'^Ii harlly p^is ::r La-*- at this Dav
O-^r. =tr^:r.2 a De^it^e ftr LJe tc ra^s ctilv the Use is tc serve
tr.*: T^-V^r^ In^^rr.fjctth^tit Dc-jht Bu: in -srhat Why in scptorting
t'r.f: P*rn;'r over "whi^h "acotild be cthennse v^:i It is to surtrort
an Int^^.t zr^i^^.r.z ticon the Face o: the WiZ & net one
fj^'.'.*-/Xf-A from extrinsic Circumstances To talk of an latent
o^it of the Will 15 5/>ntewhat new & unccmmon The true & onlv
I<eav>r4 yir.y these Devises are construed to pass only the Use
j^ that the v/hole Will may take Ecect as is sayed in Clar^ &
\y — ss of Alr^ierr^rle And *it was the very reason of allowing
the-/; sort of Devises at first Mannings Case 8 Rep. 94. 6. From
v/ ch Case it is plain that a De\'ise for Life will pass the absolute
I'r^/j^erty if there is no Rem'r over
To say there never was a Devise of this Kind in England with't
a K^rm'r over will want something more than a bare Assertion to
obtain Credit Wills are often drawn by ignorant People there
as well as here And there being no Instance of such a Case in
the BryAs will rather prove as I conceive that this was never
made a Question in England as I daresay it never was rather
than that no such Case ever happened there
But there are Cases where a Devise for Life with a Rem'r
over that has been void has been adj'd to pass the absolute
Property as Brown & Pitman Gilb. Rep. 75. Devise of personal
M state for Life & afterwards to all such Issue as he sho'd have
And ff)r Want of Issue Rem'r over Devise over agr'd to be void
And 1 Devisee had a Decree
BARRADALL'S REPORTS B287
Gibbs & Bemardiston Id. 79. Devise to one And if he die
with't Issue Rem'r over whole Int. vests in 1 Devisee Prec.
Ch. 323. S. C.
Webb & Webb 2 Vem. 668. Devise of a Term In Trust to
[267] permit T. W. the Defts. Father to receive the Profits for
his Life And after his Death the Wife for her Life Rem*r to the
Heirs of their Bodies The Father assigned the Term The
Question was between the Assignee & the Heir whether the Term
vested in the Father And adj'd at first that it did not but after-
wards reversed.
See also Ch. Ca. Abr. 362. 16. Bass & Gray
In all these Cases the Rem'r was held to be void & therefore
that the Devise for Life carried the absolute Property Now if
such a Devise will pass the absolute Property where there
is a Rem'r over that is void Upon the same Reason it will
where there is no Rem'r at all
As to the Intent of the Testor that must consist with the
Rules of Law (Ante) This is evident from the Cases just now
cited where the Intent was clear to give only for Life So
Slaughter & Whitlock in this Court adj'd in Apr. 1737. (ante 233.)
w'ch was a Devise of Slaves to two & their Issue And if either
die without Issue Rem'r over Here was a clear Intent that the
Surv'r sho'd take upon the Death of the other without Issue
But this making a kind of Intail The Rem'r over was adj'd void
It is not strange then that an Interest or Estate sho'd pass ag't
a Mans Intent The Law often supervenes that Intent where
it is inconsistent with any of its Rules
There cannot be the same Reason or Equity to make Constr.
in fav'r of the Heir as of the Rem'r man Because in the latter
Case the Testors Intent is plain & express & to be collected out
of the Will itself In the other it is nothing more than Imagina-
tion & Supposition And the Testor possibly might never have
his Heir in his Thoughts And as to the Heirs being favoured
That Rule holds only in the Case of Lands And goes upon a very
different Reason Besides here Slaves are admitted to be a
personal Estate How then can they go to the Heir
As to the particular legacy excluding Extor from Surplus
there is a Difference where a Wife & where a Stranger is Extor.
For which see Dun & Wythe in Reports ante Page
There were two Arguments made in this Case The last in
Apr. 1739. when Judgm't was given for the Deft. viz. that the
s 'jr '. ".' 1 1 - . E liT-.-r . 1-
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r^r t?.^ r^:t. tha.*. r. i:i Tt<t n the Wue Lee- TijVe. Rzcin-
v.r, Ir.'/x'^, i^'jz\ Si the Gcvem:r
(j^. If th'.-^ Ci-^ n-.er.f.tne^ ac-^ve •:: a Devise ::r Life with
a. 'r//\ P'rrr/r ^v^ ^o net all turn tic-cc this Pi'-nt that the Rem'r
rr.;*/!': a '<'.zA of Ir.ta:! Ar.i so tr.e ac^:>^te Pr:::ertv vested
^'o* V/ ;n Forth lie Chaprnan
B'Jt ?»otf: Mar.r.:r.;;s Case S. Co. 9-3. It seems admitted that
th'; !>:'/:/; for Life v/o'd vest the ahsclute Property if there had
no*, Wrr. a kerr/r over
^/, in Forth & Chaprr.an 1 W 11. G*>3. 000. a Devise for a Day or
;iri Hour of a Tfrrm w:th Rem'r over that is void passes the whole
'\iTu\ :f Intent ay^f/rs that the whole was to go from the Ex'rs
Fr, J'ky: MaV of the Rolls
BARRADALL'S REPORTS B289
OCTOBER COURT MDCCXXXVIII.
Palmer a Word
In Detinue for Slaves upon a Special Verd*t the Case is The
Pits. Mother when she marr*d his Father Martin Palmer deced
was possed of sev'l Slaves particularly one called Bridget [269]
Palmer died before his Wife in 1717. & by his Will devised
Bridget to the Pit. & other of s*d Slaves to his other Children &
made his Wife & two others Extors. The Wife afterwards
married the Deft. And in 1721. An Action of Detinue was bro't
in K. & Q. Court in the Name of the Pit. & his Brothers & Sisters
by their next Friends Martin & Roger Palmer ag't the Deft.
& his then Wife as one of the Ex'rs of s'd Testor for Bridget &
the other Slaves devised to them In which Action the gen'l
Issue was pleaded And upon Trial a Verdict given for the Defts.
** Which Verdict is admitted to Record & the Suit dismissed with
" Costs & at the Defts. Motion the Pit. is ordered to pay them
** 15S. for an Attorneys Fee" These are the very Words of the
Record. The Slaves in Question are the Children of Bridget
bom after the Death of the Pits. Father And the Pit. claims
them under the Devise in his Fathers Will
It will not be made a Question I suppose but that Bridget
& the other Slaves of the Pits. Mother vested in his Father upon
the Marr between them The Act of 1727. explain'g that which
declares them to be a real Estate has expressly settled the Law
in this Point But then there is a Proviso in the Act in these
Words. ** Provided that nothing in this Act contained shall be
** construed to change or alter the Property of any Slave or
** Slaves w'ch by the Judgm't of the Gen'l Court or any County
" Court have been heretofore adjudged to belong to any P.son
** or P. sons whatsoever but such Judgment shall remain & for
** ever hereafter shall be deemed & taken to be valid & binding"
Now in this Case the Deft, says there has been a Judgment viz.
the Record in K & Q. Court found in the Verdict. The sole
Question therefore is whether this Record be such a Judgm't
as within the Meaning & Intention of the Proviso af 'd will bar the
Pit. from claiming the Slaves in Question or from bringing this
Suit
It may be necessary in the first Place to enquire into the
Reason & Policy of this Proviso w'ch at first View seems a
little hard as it gives a Sanction to Judgm'ts whether the De-
:z,J.-* '-'Is \1. ' I-* ] /^\. L-I- _ -z.* YJ 1
■ ^^ • » V^ ^ % '^ .- ^^.*^l --^^ ^^ , .^m, «. X^ l_ ■ - *^ -^ ^^ ' • * .^^K^
•.A^i^ -fc
* . - —
t *^,^ .^ .•r£«..«i; .J.n ni.*^»-._l^ ^9t . ■ ■ «XI .Jtr ' ^-J— to- ^Ji ..^_*±^ T to- to- _
,. <7 ,^ ^ ....* t to-_^i— . - -■- izi * '_ -i:i:r. _ji^ »trr:
*A ',^ r.r.s^ v, ir.^ r--;*- n
"' "-- ■ i'S'SrrrrL'ttl'l ".Jl'r :<- -C^W ^. Sl r : _1»IT 'Z rUtT'lJrZtolllS'
, • •• • 3 m-*^'' "
^ # > ,**.V m
',">' .\^, r^ "V'.^ r T. il'T .fc "."TT* ^ T-T-- rf Itotr^^ . • ".""i^to tJ^C
^ M ,/,.. ,% .."rr^ ,-. .-:T.. -"T^to &to^ -H^ ' 2«^»_^_ *^_'±r^ -- &to.to<r&^s toto-'c
^ .»-» « •' .>«««-to ^
A >>.«*•• ,..K I m . ^ — - » ^-s i: - ' 'rito .► - ^ — ^^sz * T*. ^<i to. a -J. — ftT?^ I to r?r>iito_to-.c
,..4i,. ^t*zZK /O. « -•• ^...rrltoto'i'tr* * rrt ,*» to.*-.- w-^- -->-c -*i-*j..to ..^C x a- .« Aii ^
I* %a.^ r.^:v*rr ir.ter.'i^ tc t^ke a'srs.y the Ri^ht of bringing a
V/r:* of F^r'-^r to ZH^ffT"^ ar.v Jut;rtn't of this Kind if there was
oth^rr Car;--/: for rioir.jf :t than the ad^d^in^ the Prcrertv of the
W,HVfr\ i^/T instance if a Judgm't was ch:ained by Fraud Or if
an Infar.t ha/'i b^fm sued & appeared by Attorney instead of
f/fjard:ar, ^it'ch is Error It can never I say be supposed to be
tho- Ir.Vrr.*iori of the Law makers to make such Judgments valid
<n i/f yy/fz a Sanction to them. But the Judgments intended
by thin Proviso are only such where it appears 1. that the
Prop^rrty of the Slaves was adj'd to belong to some Person & that
M\t<fT\ ^fmc controverted Point w'ch the Explanatory Act settles.
2. That such Judgm't be valid in Law & binding upon the Party
iiyjt wh^/m it is given And such as would be a good Bar to another
Action
I will now beg Leave to examine the Reco. produced by the
Tf;xt I have laid down And I believe it will appear to be dificient
in both Instances viz. That it does not appear the Property of
Ihc! Slaves was adj'd And that it is not valid or binding in Law
Herrf is the Record (Read it)
BARRADALUS REPORTS B291
This Record Sir is nothing more than a Relation or Account
of a Trial that a Jury was sworn a Verdict for the Deft. & the
Suit dismissed It is not sayed nor does it appear that the Court
gave any Judgment at all much less that the Property of the
Slaves was adj'd to be in the Deft. It was certainly a Matter
of Law whether the Slaves vested in the Husband or not And
if that was the Queon at this Trial w'ch I insist upon it does
no Ways appear the Jury should have found a special Verdict
Or at least the Court have directed them as to the Matter of Law
There is nothing but a bare Presumption that this Point was at
all in Question The Suit indeed is in the Name of Children &
ag't the Extor of the Husband but it does not follow that therefore
this Point was in Question If Presumption is to weigh or pre-
vail It ought to be made in Fav'r of the Coiirt & Jury that
they did their Duty w'ch they certainly did not at this Trial
if it was left to the Jury to determine Whether the Slaves vested
in the Husband by the Marr It was a Matter of Law which
the Court should have determined But [271] if we are to go
upon Conjecture & Presumption I will beg leave to offer mine
too. This Suit is to be sure as absurd a one as ever was brought
It is an Action of Detinue by 4 Pits, who had separate Interests
ag't one Exor tho* there were three who proved the Will to
recover sev*l specifick Legacies devised to the Pits. This app*rs
in the Decl. Now 1. the Pits, could not join 2. Detinue would
not lie ag*t one Extor alone & 3. Neither would such an Action
lie for a Legacy for the Legatee could have no Property but by
Del very of the Extor & the proper Remedy was in Chancery
Now it is as reasonable to suppose that all or some of these Points
were insisted on at the Trial & induced the Jury to give their
Verdict as that they took upon them to determine whether the
Slaves vested in the Husband If it be sayed these were Matters
of Law The same Answer is given as to the Presumption they
would make After all It is a new Way of arguing upon Records
to make Suppositions & Presumptions of Things that do not
appear The Rule of Law is ** Inter non existentia Sr non appa-
rentia eadem est ratio.'* There is no Difference between Things
that do not appear & Things that are not If then it doos net
appear that the Property of the Slaves was adjudged by the
Court upon this Trial It must I conceive be taken for granted
that it was not
Indeed there will be no End to making Presumptions The
r; J'j VI ? ^/.l 'lA •' 1 L-1 ^*IAL Z Z IZSI 1 .» S
^r.*! it t?. tT-'rf '-T^ I r. '-1.*t th.'T'T "XT.II C.«£ CCtlTrJV r^'^rCIc'd
# " ' '^**"'^ **^^ *"** ***"" """""^ - - - — — • •— ■ — ~ ■ ' w " »
r*:v*rr» 'f f'.r Err^r N't:::htT v-.ll :• te zrs% Bar ic a secz-f Ac*::n
hr'/t for tl-e s^me M alter The W:rls /ifc JvTKJiie^^siiK tsi
ar^ e-'^^.tial V> every J-igm*t Ani the Law is sc- nice & strict
that r.o ether Woris the' cf the sane Iizror: & Si^nifcation
are r-ff.o't Or.e Reaser: given & a g»l ctie is that it otight
*y> a:.i/f:ar tr.at J-n'igment was given en due Cins. 1 Inst. 39.
Tr.e ver^'a-iiir-^ of other Words will niake the Judgm't errontous
'5 Danv. .Vi. p!, I'i''-J -1- to 24. Xcw in the Reoc-rd before us it is
V/ far from being entered that it was considered that it is not
so m'-:',h as saved to be ordered Except with Respect to the
Lav. vers Fee Xor any other Word to shew it was the Act of the
Orjrt 5>o that this is real'y nothing more than an Account of
a Trial bt:t no Judgm't at all
[272] Sho'd this Exception be overruled there is still another
Ac a stronger remaining It is not entered .that the Pit. shall
lake nothing by his Bill These are Words so absolutely essential
that without them the Judgm't is of no Efficacy at all It cannot
Ix: pleaded in Bar to a second Action brot for the same Matter
It may be reversed for Error. It is a known & settled Rule
that every Judgm't to be a good Bar to another Action must be
a compleat Judgm't in Law both as to the Matter & Manner
As to the Matter it must appear that the very Right of the Cause
was determined in the former Action As to the Manner It must
be entered up in the Form the Law has prescribed Now these
Words qd, Querens nil capiat is a Phrase of Art not to be supplied
by any other Words & without which no Judgment can be
a Bar to another Action Cro. Jac. 284. Leval a Ha , 1 Bro. 81.
S. C. 2. Mod. 294. cited Holt R. 552. Fr Holt And this Point I
have known adjudged in this Court If then this is not such
a Judgm't as would bar the Pit. from bringing another Action
in Case this Act had not been made I hope the Act will not be
construed to give a Sanction to such Judgments w^hich strictly
BARRADALL'S REPORTS B293
speaking & in the Eye of the Law are really no Judgm*ts at all
A 3 Objection to this Record called a Judgm't is that it is ag't
Infants & so not final or conclusive upon them The Law is
very tender & careful of the Rights of Infants So that no Act
done during their Nonage to their Prejudice unless they have
a Remedy over is binding upon them Upon this Reason it
is there is a Difference where an Infant is Pit. & where he is
Deft. Where he is Deft, he may be bound if he defends by Guard-
ian & not else but never where he is Pit. When an Infant is
sued a Guardian ought to be appointed by the Court to defend
him And if he loses his Cause by his Mismanagem't or Default
the Common Law gives him an Action ag*t his Guardian to have
a Recompence in Damages But where an Infant brings an
Action Be it by prochein Amie or Guardian (for it may be by
either) the Law gives him no Action at a'l in Case of any Neglect
or Default to his Prejudice And therefore no Judgment given
ag't an Infant Pit. is binding & conclusive upon him In this
last Case the Guardian or next Friend are not appointed by the
Court but anyone who will thrust himself into the Office may
be so for that Purpose.
I had Occasion in an Argument 2 or 3 Courts ago between
Brooking & Dudley (ante 239) to shew the Difference between
a Guardian & prochein Ami And that tho* the Offices were often
confounded they were really very widely different
[273] It seems however unnecessary at this Time to enter
into that Point of Learning. It may suffice I hope to shew an
Authority for the Difference I have taken where an Infant is
Pit. & where Deft, w'ch if rightly understood will serve for an
Answer to any Cases that may be produced to prove the Power
& Authority of a Guardian And make it evident they only re ate
to Case; where an Infant is Deft. Simpson a Jackson Pam.
295.
The Law in this is founded upon the highest Reason for how
easie would it be by Covin & Collusion to juggle Infants out of
their Rights if an Action brought in their Name by a pretended
next Friend sho'd be final & conclusive upon them The Infant
can have no Action or any other kind of Remedy It will be
no Answer to say there is no Fraud appearing in this Case My
Argum*t is gen*l that Judgm'ts ag't Infant Pits, are not con-
clusive because there may be great Prejudice arising to Infants
It is an Argum't ab incovenienti which is suffic't to prove a
hJfr* VZ X ^I. . -A 'ZC 1.^ 1 . ^\Z^ Z ::..ZI5I I V S
■"-f!
Ar.<i I iou^-r :n:r -v:ll '-#» -v-^il :L':ti:a: ier^i
T?."^ frir I hi'xe "liLa 5L^':ri -^ :ii: Bar iz 3kZ.zz ihe ?It3. Title
V> t?.rt Slar^ia m ^"iti^ictL I. Zz fi:es m:^ iC';ear th^i: the Pn'-
er^T ^f *r^ Sla-r-^ -ri^ it iZ ii-^ir-^i :r letermnfiti "urcn this
Tr:;*! A-d 'he Prt^^-^t r*'_:el ~*:!i :5 ^xtr?<5 Trusn zh& Pncerty
h^4 r.^y*t: a*i"iit^-^ 2. H^r* :s r^aZ— ZfZ 'inf^rniiKit ir. the Eve
of '/".e La.v N'or tc'-.u!,-: -his R^icri te ir.T Bar '.i ancther Aztion
fr^r th-* ^arrjft ^fa.tt<*r And ccnseittrtitlT can be ncne ro this.
Z. It til a J-id^rn't :f rt :aii le lalleti 5<: a:^'' an Infant & so
T^cA f.T^l '^r corxl'i'iv*. F'-r all these Reasons I ccnceive this
Rj^oor-i i=i nr, J-^istn't Trithin the il^anmg^ i Intenticn c: the
Pr^v:y^ Sc yj I t-rav Juizmt ::r the Pit.
Oct. IT.^S. J'jita-ni't 'jras ziven ::r the Defend t viz that the
R.T^.cr'i ^j'ztA -w^LSi a gxd Jtiirtn t -snthin the Proviso Which
I r>Trn vfrry rr.tich stLrprised me And the mere as there was cot
or.f: ^vyi Reason or Argtnnent cnered on the other Side But the
(y.*:ir.r'[ for the Deft, seemed to be ccnvinceii that the Pit. ought
r.ot to be tj^LTT^A bv the Record irjnrA.
Tavloe Grvmes
Carter Robinson
EHgges Byrd
Blair & the Governor for the Deft.
Lee Randolph & Custis for the Pit.
fNV>t m A ^iffftrent hand. W. W. S.]
C^'re hr^w thi% wvald be if th« Srst Judgra't shciild be reversed oa a writ of error
[27 J] APRIL COURT MDCCXXXIX.
ScARBURY & Anna Maria his Wife Pits. ag't.
Barber Extor Barber. De^. in Cane.
Bill s^;ts forth that Pit. Anna before her Marr with Tester
Ic'Ht him divers Sums of Money to pay his Debts viz. in July 1729.
£,\^l — 10 St. by Bill drawn on Jno. Maynard In Dec'r
following £.:^0, by a like Bill In Jan'ry 1731. ^^.40. by another
lijll & other Sums am'o to 69-9. 6K Curr't & sold him Goods
to Am o ;dr.7 -15. Curr't In the whole ^.261-10 St. & 77. 4. 6»i.
Curr,
That upon a Treaty of Marr. Testor agreed she sho'd enjoy
BARRADALL'S REPORTS
B295
I
all her separate Estate Notwithstanding the Marr & that he
sho*d likewise pay her what he owed and in Apr. 1731. gave
Bond to the Pit. in Penalty of ;£lOOO. with Condition for Per-
formance of said Agreem't which Bond is annexed to the Bill
That the Testor by his Will has only devised to Pit. her separate
Estate without directing the Paim't of the Mony he owed before
Marr. Therefore to have Satisfaction for that Mony out of the
Testors Estate Is the Bill
Defts. Answer. ICnows nothing of Testors being indebted
•iage & never heard of the Bond till a Year
lys he knows upon what Acco't it was given
any such Agreem't before Marr as in Bill
& Cattle raised on Testors Plant'n for sev*l
& after Marr. were used by Pit. and that the
Plant'n of Defts. descended to him from his
Years before Marr. were ship*d under Pits.
d & believes the Tob'o made on his Fathers
d in same Manner & the Produce carr'd to Pits.
^<% T»T,-
I
I
I
[
I
I
I
,b't six Weeks before his Death told him that
uasion he had paid her Son Jn'o Timson 50£.
I ; a little Ease but he found there was no such
i would give all from his Children to hers w'ch
t o & wished he had not paid the 50;^. Made his
I ho directed him to give Pit. everything she was
I the Marr saying it was more than she deserved &
I rds Sake he would not give her a Farthing more
iesides which he gives her Dower in his Lands
ard his Father complain of Hardships he suffered
saw the Bond but in the Office BeHeves it to be
ig The Condition whereof is thus
** The Cond. of this Obi. is such that if the above bound W. B.
** his Heirs, Ex'rs & Adm'rs shall at all Times hereafter suffer
** the above named A. M. T. peaceably & qu'etly to keep possess
** & dispose of as she shall think fit all & every Part of the Estate
** that she is now [275] possessed of both real & personal without
•* the Molestation of him the said W. B. his Heirs &c. And
* do hereby further obUge myself my Heirs &c. to pay to the
** said A. M. T. what I am justly indebted to her Then the
" above Obligation to be void &c
Says his Fa'rs Slaves & personal Estate were appraised only
111
U-
Cb X\J ?••>-•-
^_'> # ^^. j__ .A • .. ' . _\ _ _r.«_-:r- _!• :?
'f'l'*: \^'.'/:^ Vj^rz. are ^xz-jz-z^z^'zrri it Liir A:i«f as :jil5 Case is
* -.*; - - ^'-.i — ,..e '««i.....i<r aZ^ ^-,- >T^^ Jl -_t • SZ^ m. -^-^'^^^--A — •
^ 'y •••"• •'",*. \'^'-*'V *»&^"* '^"^ l^"-" ^-iC ^x^ "'*"'"■ ■^'" •5l~'"~'#* JV'*»"sr— •^•e
c'lrr t ^ rJ. 1* c: L^iir-z a L#:T-r->r:cr tr:n the Tfst:r & the
\^::Sarh '.frr.T*: MaTT-
Tr.e 'd'^,:£.\ ^►--est:':-:: in this C^se is -arh-rther the Pit. cti^ht tc be
paid dt 'f the Testers Estate the M:t:v she lent him before
Marr
The E'.tiitv s^t u:> is a cretenie-i Azreir:': bef:re Marr that
the Te^tor sho'd pay the Pit. what he twed her Xttirithstanding
tlte Marr, This is stigj^-estei in the Bill but net proves! as I con-
ceive
I shall therefore in speakir^ to this Cause endeavour to she'w
\. That there is not any certain or p-c-sitive Proc*t of the Agreem't
pretended And 2. If there was Tnat the Agreem't is derogatory
to the R:;^hts of Marr & such as a Court of Equity will not
support. I shall not rely much upon the Demurrer because
we are ;^one into Proofs and the whole Equity of the Cause is
before the Court
It cannot I think be sayed that there is any direct or positive
Pro^^f of the Agreem't suggested in the Bill The Bond which is
a!UyI^ed to have been given for Performance of the Agreem't
has not a Si liable in it of an intended Marr or that the Condition
should be performed notwithstanding Marr. Neither is there one
Witness who proves any such Thing And the Deft, denies that
he knows any Thing of such an Agreem't
It appears indeed from the Papers exhibited that the Testor
courted the Pit. many Years before Marr & offered her very
\!<t(A Terms but they were not accepted This was four Years
at least before the Marr. And no Proof of any Overtures within
those 4 Years or that he continued in the same Mind And yet
BARRADALL'S REPORTS B297
these are the Circumstances relied upon to make out the Agree-
m't suggested in the Bill
[276] One of these Papers is a Love letter dated in 1722. 9
Years before the Marr. There is another Love letter without
Date & the Draught of a Bond sent in it The Date of the Bond
is cut out with Design I suppose to impose it for a Thing of later
Date than it really is but the Figure 7 may be seen pretty plainly
at the End And so we may conclude it was dated in 1727. 4
Years before the Marr.
I must submit whether a Man's courting a Woman four
Years before he marr'd her & then offering her advantagious
Terms is any Evidence of a subsequent Marr Agreem't suggested
to be made 4 Years afterwards when there is no kind of Proof
that the Courtship continued or that the Man remained in the
same Mind And if it be no Evidence as I humbly conceive it is
not Then are the Pits, without the least Shadow of Proof of the
Agreem*t suggested
The most that can be sayed is that these Circumstances
make some sort of Presumption that the Bond mentioned in
the Bill was for Performance of a Marr Agreem't for it is no
necessary Consequence that because a Man once makes an
advantagious Offer to his Mrs. that he should be always so dis-
posed at any Distance of Time On the contrary we know Mens
Tempers & Inclinations are very subject to change & especially
in Matters of this Sort when a Mistress is obstinate
The Presumption then in this Case must be very light which
according to Sir E. Coke proves nothing at all And if the Differ^
ence between the Conditions of the two Bonds be considered
it must further weaken the Presumption In that of 1727.
Notice is taken of an intended Marriage whereas nothing of that
is mentioned in the Bond of 1731. By the first the Testor was
to make over all his own Estate as well as the Pits, (a most
extravagant Proposal) The Cond. of the latter is only that she
shall have her own Estate & he pay her what he owed her As
there is so great a Difference between the two Conditions &
one mentions an intended Marr. & the other not As there is no
Proof of the Courtships continuing from 1727. to 1731. I cannot
conceive that the Bond in 1727. is any kind of Proof that the
Bond of 1731. was given on the same Occasion or for the same
Purpose but the contrary I think is rather to be presumed
Then the Testors Decl. mentioned in the Defts. answer when
B2r/S VIRGINIA COLONIAL* DECISION'S
he nuuie his Will is a further Argument ag't this Presmnption
After directing a Bequest of Pits, separate Estate & her Etewer
in his Lands he saved it was more than she deserved & he [277]
would not have done so much but for his Words Sake which
plainly imports that whatever Marr. Agreein't he had made
was only verbal Or rather that he had only made a Promise
to the Pit. (which perhaps might be after Marr> to do what he
did.
This Bequest & Decl. of the Test or I presume will have some
Weight In the Case of Myhil 8c Myhil Oct. 1735. where the
Question was Whether the Pit. was a Bastard the Decl. of the
Husband in his Will that he was so was much relied on And the
Case of one Tranter a Bailif try'd for the Murder of Mr. Luttere
was urged where Mr. Lutterel's Words in his last Moments
were allowed as Evidence ag't the Prisoner Here we have the
Will & the last Words of the Testor ag't the Presumption they
would set up.
But it will be argued perhaps Quorsum hoc To what Purpose
was this Bond given This I think will admit of an easie answer
by shewing that the Cond. may have a suffic't Effect & Op>era-
tion without supposing it to be made for Performance of a Marr
Agreem't
The first Part of the Cond. is that the Pit. shall keep possess &
dispose of all the Estate she was then possessed of without the
Molestation of the Obligor Suppose the Pit. had anything in her
Possion which the Testor had or claimed a Right to (And this
is no improbable Conjecture Since it appears they lived tog'r
& she had the entire Use & Disposal of his Estate) This Part
of the Cond. would have its Effect in securing to the Pit. a
good Title to the Thing so in her Possion And the latter Part
of the Cond. that he sho'd pay what he owed her might be in-
tended as a better Security for the Paiment of what he owed
Thus we see this Bond might be given for another Purpose
than for Performance of a Marr. Agreem't The Condition
does not necessarily import that it was given for that End but
may have a suffic't Operation to other Purposes
Since then there is not the least mention of an intended Marr.
in the Cond. Since the Cond. may without any forced or strained
Construction have a suffic't Operation without supposing a
Marr. Agreem't And since there is no direct or positive Proof
of such Agreem't I hope the Agreem't suggested in the Bill shall
BARRADALL'S REPORTS B299
not be supported barely upon a slight Presumption without
other Proof Especially when the Presumption is as strong or
stronger from the Circumstances that have been taken Notice
of that there was no such Agreem't
It is well known that Marr is a Gift in Law of all the Wifes
[278] personal Estate That it extinguishes all Debts & Con-
tracts between the Husband & Wife And this Right a Court
of Equity is always very tender to preserve And I apprehend
will never take from the Husband what the Law gives him or
set up a Debt w*ch the Marr has extinguished without clear
Proof of an Agreem't to that Purpose w*ch I take to be wanting
in this Case
But if the Court shall be of Opinion that the Agreem't is
sufficiently proved And that the Bond is not extinguished by the
Marr Then I must endeavour to shew 2. That this Agreem't
is not such a one as a Court of Equity ought to support as being
derogatory to the Marr Rights
It will be sayed that Marr Agreem'ts are always favoured
which I agree to be true in this Sense that an Agreem't fit and
proper to be decreed will receive a favourable Interpretation for
the Support of it accordnig to the Intention of the Ptys. But
I deny it to be an universal Rule that all Marr. Agreem'ts are
to be favoured Because there are some of such a Nature that
a Court of Equity will not support them at all And this I take
to be of that Kind
The usual Method in Marr Contracts is to make Use of a third
Person as a Trustee However I will not pretend to say but
that an Agreem't between the intended Husband & Wife with-
out the Intervention of a third will sometimes be supported
in Equity And that whether the Agreem't be by Promise Articles
or Bond But then
If the Agreem't be between the Husband & Wife alone I take
a Difference where the same is to have Exon during the Coverture
& where the Exon of it is future to the Marr. Of the first Kind
are such where the Husband agrees ftiat the Wife shall have any
Thing to her own Use or at her Disposal during the Coverture
The latter Sort are where the Husband agrees to leave his Wife
so much at his Death That she may dispose by Will or the like
In the first Case as the Agreem't is without Question extinguished
at Law So I take it a Court of Equity will never set it up Because
it is derogatory to the Rights of Marr & in a Manner inconsistent
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/'•v / y.?;^ ','::,z:,*/\Jirj',\ exv.r.jr-irr.r-i it the Marr. & refused
#^*. *^ \"/./^'//:, a Vr\jyjz.s Ex.^ 1 Ch. Ca. 117. An A^rem't
v.i,t r/.^/:*- '^7 Kt. & ^rr.^'-r* or- her Behalf befire Marr with Tesior
*',;?< f,'/rv/;rh^r;ir,'::r.;' the Marr. the Rents & Prc.^ts of all her
*fy>u h^Mx*^t Sc v/hat personal Estate &: gc-:-is she had should
)/^: it*, ).*:r ov/f, D,'.;/^yVj It was held by the Keeper (Bridgman^
i$^A,i.U^] v/;*h tv/o Jwly/ts CHales Sc Archeri that the Agreem't
V/;ni t',z\it,y/ii j,*A by the Marr And Hales takes the Difference
I n\y '/fi f/'Ttw. an A;^re'mi*t for any Thing to be done future to
BARRADALL'S REPORTS B301
the Marr. & where the Agreem't is to have Exon during the
Coverture In the first Case he says the Agreem't is not ex-
tinguished by the Marr. but is in the latter I will beg Leave to
read the Case as I presume it will be satisfactory to the Court
to have that great & good Mans Opin. in his own Words
Thus it appears the same Distinction is kept up in Equity as
at Law If the Agreem't is extinguished at Law Equity will
not set it up If it be not extinguished at Law as where the
Exon is future to the Marr. There is no Doubt but Equity will
decree it Which is [280] all that is proved by the Cases cited
on the other Side And this Difference well considered reconciles
all the Cases we meet with in the Books upon this Subject tho'
at first View they may seem to clash & contradict one another
The Agreem't in this Case as set forth in the Bill is to have
Exon during the Coverture It is that the Pit. shall keep & dis-
pose of her own Estate And the Testor pay her what he was
indebted to her And so I apprehend it is not such an Agrem't as
a Court of Equity will support
It would indeed be the greatest Absurdity that such an Agre-
mt. as this sho'd subsist after Marr for every Debt of the Wife
vests in the Husband by the Marr. And so the same Pson would
be both bound to pay & intitled to receive if the Debt subsisted
For this Reason it is & for avoiding this Absurdity that the Law
extinguishes the Debt And the same Reason will hold good why
it should not be set up in Equity And I believe I may venture
to say there is no Instance where a Court of Equity has set up
an Agrement of this kind but they have often refused so to do as
appears from the Cases cited
Obj. Haymer a Haymer 2 Vent. 343. Agrem't between
Husband & Wife before Marr. that he sho'd settle Lands on
them & the Heirs of their Bodies Decreed ag't the Heir of the
Husband This within my Distinction for here was nothing to be
done during the Coverture inconsistent with the Marr. Rights
or derogatory from them
Cotton & Cotton 2 Vem. 290. A Woman Extrix of a former
Husband lends 100;^. to A. & B. & took a Note for it in her own
Name & a Bond in Trustees Name & afterwards marr'd B. It
was held this Debt was not extinguished — The Report is short
& the Reasons of the Judgm't not given But I take the Reason
it turned upon was because the Woman lent the Mony as Extrix
And so the Debt was not extinguished at Law the Husband
B302 VIRGINIA COLONIAL DECISIONS
being indebted to her in auler droit as our Books phrase it Vide
1 Sal- 320 — But here is nothing of a Marr Agrem't in this Case
And so nothing to the present Arguin't If any thing It serves
to shew that upon these Occasions Law & Equity go hand in
hand
Acton & Peirce 2 Vem. 280. is a Bond to the Wife to leave her
1000;^. In which Case it is not extinguished either at Law or
in Equity.
2 Wms 243. S. P. Cannel vs Buckle.
Fursor a Penton 1 Vem. 408. Cov't betw. Husband & Wife
before Marr. that she should dispose 300;^^. notwithstanding
the Marr The Mony was lodged in a Trustees Hands & the
Husband brings a Bill ag't him for it suggest 'g the Cov*t was
[281] extinguished by the Marr The Trustee in his Answer
says it is hard a Trust sho'd be defeated because the Agreem't
was improvident ly made between the Husband & Wife The
Reporter says the Court inclined to dismiss the Bill but there is
no Resolution — This Case not being adj'd can be of little Weight
But it is easie to distinguish it from the Cases cited There was
a Trustee before the Court with a Sum of Money in his Hands
Upon which the Court could easily lay their Hands And as all
Trusts are Creatures of Chancer^' the Court might perhaps have
taken upon them to direct the Paim*t of the Mony according
to the Trust without Regard to the Informality of the Agreem't
But here is not Trust or Trustee in the Case before us And so
the Cases can in no sort be compared tog'r
N. B. The Reporter seems to inclne to the Difference I take
And thus I hope it is evident that the Agrem't set up if it was
fully proved (w'ch I can by no Means admit) is not such a one
as a Court of Equity ought to support It may seem needless
then to make any further Observations however to shew there
is no great Hardship on the Pit. I must beg Leave to make a
Remark or two
It appears upon the Defts. Answer & is in Part proved that
the Pit. for sev'l years ship'd the Testors Tob*o under her Mark
& reced the Produce & killed & made Use of the Testors Hoggs
& Cattle In the Acco't exhibited by her she has given Credit
for no more than 35 . . IL for the Produce of Tob*o And that
in a gen'l Article without sa)dng how many Hhds she received
or when & there is no Credit at all for Cattle or Hogs This
BARRADALL'S REPORTS B303
must appear a very inconsiderable Allowance for the Labour of
11 or 12 Hands for sev'l Years 3 according to her own acco't
Then she charges 2^£. for Tools & Cloaths for the Negros So
the n't Produce is but 11^^ . . 11.
It appears further upon the Answ'r that the Testor told the
Deft, six Weeks before his Death he had at the Pits. Importunity
fr. her Son 50£. To get a little Ease but she would not be satisfied
without having all from his Children (as indeed is plain from
this Suit) No Allowance is offered to be made for this 50^^.
The Claim the Pit. sets up amounts to more than the whole
Estate of the Testor So if she succeeds Not only the Testors
Children will be sent a begging but sev*l of his just Cred'rs be
defrauded of their Debts And besides all this the Pit. holds
her Dower in the Testors Lands It is a Maxim those who \vi\\
have Equity must do Equity and surely there is as much Reason
& Justice that the Pit. sho'd acco't for the Profits of the Testors
Estate while she reced them & for the 50;^. pd. her Son as that
the Testors Estate should be liable for this pretended Debt to
her It is a piece of Justice to the Cred'rs & Children of the
Testor Now I believe if a reasonable Allowance is made for the
Profits reced by Pit. out of Testors Est'a If the 50;^. pd. her
Son & the Advantage she has made from the Dower in the
Testors Lands be deducted out of her [282] Claim I mean
so much of it as is proved there will be little or nothing due to
the Pit.
In the Case of McCarty a Fitzhugh ab't six Years ago which
was a Bill to compel the Paiment of a Bond Debt due to the Pits.
Father from the Deft, who was one of his Exors The Deft, in his
Answer disclosed divers equitable Demands he had ag't the Testor
And without other Proof the Court allowed those Demands
to bal'a the Bond Debt And the Suit was dismissed. I hope
there is the same Equity in this Case to regard the Defts. De-
mands
But there is a further Circumstance in this Case which I
apprehend will bar the Pits, pretended Equity if the Agrem't
was ever so fully proved It appears that the Pit. has accepted
w't the Testor gives her by his Will viz. her separate Estate &
Dower in his Lands. This Acceptance I take to be a Waiver
of the Benefit of this pretended Agreem't I must submit whether
this Case be not within the Equity of the Act 1. Geo. 2. 11. w'ch
enacts that a Widow shall declare within 9 months Whether
BoW v:rs:x:a c.:i.:nl\.i decisions
she :^.ll jLcee'jt I'jie ?r"."'<i':ii ::u..ie ::r he* bv her Husbands Will
If she rjils she -^ :: river horr i tj :lain arvthmg more than is
^^ven her Iv the '.V 11 Hrre the ^'he is so far trom making
any Decl. thj.t she t-.H -«. c icjtrct thj.t she actually enters upon
what :s ctven. hir It -js trLiin nr.m what the Testor declared
when he rrtade his W.H that th-s TeTise was intended in Satis-
faction of what he rr:misei w ^h must he understood of the
Marr A^rrem't The Wife accert it This Acceptance I rely
upon bars her frjm claiming any-:h:r:.: mere hoth by the Act of
Ass. & in natural E ::/~i-ty i Justice There can be no Reason
she shod ha\"e the B^n^ert .^f the EV'.ise & this pretended Agre-
m't too To the defrauiinii cf the Crec'rs i Ruin of the Testers
Children
Upon the wh. le I ccnclule I. that there is no direct or positive
Proof of any Marr A^renit at all And the Presumption on their
Side is verv li;:ht in itseh & is also or rosed & baUanced by as
stron^:: or stron^zer Presume tion en our Side 2. The Cond. of the
Bond does not necessarily import ihat it must be given for
Pertomiance of a Marr Agreem't Because it may have a sufRc't
Erfect & C^eration to other Purposes 3. If the Agrem't was ever
so fully provevi Yet it is extinguished by the Marr being to have
Exon during the Coverture & so derogatory to the Rights of
Marr. & inconsistent with the Nature of it 4. The Deft, has
divers equitable Demands ag*t the Pit. to the Value of hers And
if she will have Equity she must do it 5. And lastly she has
waived this pretended Agrem't & barr'd herself claiming the
[2S3] Benefit of it by accepting the Provision piade for her by
her Husband's Will For all these Reasons the Pit. has no kind
of Pretence to Relief in this Case And trereiore I hope the Bill
will be dismissed
And it was dismissed by the Op in. of the whole Court praeter
Grymes Carter & Blair — Light foot & Dandridge gave no Opin.
April 1739.
In this Case an Appeal was prayed for but the Pit. ackw.
at the Bar her Son had reced the oOj^. mentioned in the Ans*r
w'ch reduced her Demand under 300jf . Sterl. It was denied
Banks a Banks & others In Cane,
William Banks by his Will devises thus ** I give & bequeath
" to my Son Ralph Banks (Conditionally that he no way alienate
*' or transfer my Land hereafter mentioned to any other Use
BARRADALL'S REPORTS B305
* than to the Use & Uses that shall be by me herein declared)
* all & every Part of my Home Dividend of L^md where I now
* live Even to him my Son Ralph & the Heirs of his Body law-
' fully begotten for ever meaning his Children present or here-
* after to whom the Right & Inheritance of in & to the said
* Land shall descend & go in Case they or any of them survive
* him But in Case he survives all of them that my said Son
* Ralph shall be at his own Liberty to will & devise the Premes
* as he shall think fit
The Question is Whether Ralph by this Devise took an Estate
tail or only an Estate for Life and his Children an Estate in Fee
in Jointenancy after his Death in Case they survived him
And I conceive that Ralph took only an Estate for Life with a
contingent Fee however in Case he survived all his Children And
that such of his Children who survived him take an Estate in
Fee in Jointenancy
It seems needless to enforce that plain & almost uncontro-
verted Doctrine that in the Construction of Wills the precise
Form of Words is not so much regarded as the Intention of the
Testor And that this Intention is to be collected from the whole
Will To illustrate this by a Familiar Instance If a Devise be to A.
& his Heirs in one Part of a Will Which Words we know make
a Fee simple Yet if afterwards in another Part the Estate is
limited to another in Case A. die without Issue It makes an
Estate tail by Impl. & Constr. of the Testors Meaning collected
from both these Passages or Clauses In this & 20 other Instances
that might be mentioned It appears that latter Words or
Sentences [284] in a Will may so controul or explain former
Words as to give them a different Sense & Meaning from what
they naturally or in strict Constr. of Law would bear It is
indeed so known & plain a Rule in the Constr. of Wills that I
am persuaded it will not be denied on the other Side
To apply this to the present Case Here is a Devise to one & the
Heirs of his Body This with't all Question would make an
Estate tail if nothing followed or preceded to shew the Testor
had another Meaning & Intention which I must now endeavour to
shew But I will first beg Leave to read the whole Clause in the
Will relating to this Devise
I apprehend Sir upon the bare Reading It must appear the
Testor intended something more than meerly to give his Son
an Estate tail What need of so many Words for that Purpose
B306 VIRGINIA COLONIAL DECISIONS
when a single Line would have done I apprehend too it is as
plain that the Testor intended the Inheritance (It is his own
Expression) should go to all the Children of his Son who happened
to survive him And then the Son could not take an Estate tail
for if he did the Inheritance would be in him & go to his eldest
Son alone
There is nothing in the whole Clause that carrys the least
Appearance of an Estate tail being intended to the Son but the
Words Heirs of the Body And when it is considered for what
Purpose the Testor made Use of those Words & what he meant
by them as he himself has explained it It will be mighty clear
as I conceive that he did not intend them as Words of Limitation
or with any Design to increase or enlarge the Estate given to his
Son but to quite another Purpose
In the first Part of the Devise He gives to his Son Ralph with-
out adding more Upon condition too that he sho'd not alien or
transfer to any other Use than the Use & Uses mentioned in his
Will It will be agreed that nothing more than an Estate for
Life would pass to Ralph by these Words And I must submit
whether this be not some Proof of the Testors first & primary
Intention to give no more than an Estate for Life Then the
Condition not to alien in my apprehension is a fiui:her Proof
that he did not intend an Estate tail Since the most ignorant
know that Tenant in Tail cannot alien or sell But it is not perhaps
so well known that Ten't for Life with a contingent Fee (w'ch
is the Estate I conceive the Testor intended Ralph) cannot sell
And that might be the Occasion of adding this Condition Then
he is not to alien to any other Use than the Use & Uses [285]
in the Will Would a Man have expressed himself thus who in-
tended nothing more than an Estate tail What could he mean
by the Uses in his Will if that was his Intent & there was but one
Use or Estate intended to [sic] given
To proceed to the Will after this Devise to his Son & this
Condition he adds ** Even to him my Son Ralph & the Heirs
" of his Body for ever meaning his Children present or hereafter "
Had the Devise gone no further than to the Heirs of his Body
I agree it would have made an Estate tail but when he adds
meaning his children &c. He has explained what he meant by
Heirs of the Body viz. the Children present & hereafter Which
is a clear Proof he did not intend the Words Heirs of his Body
as Words of Limitation to encrease or enlarge the Estate given
BARRADALL'S REPORTS B307
to his Son but only as a Designation or Description of his Sons
Children And therefore in our Law Phrase Heirs of the Body
here cannot be taken as Words of Limitation but as Words
of Purchase not to ncrease o* enlarge the Estate given to his
Son but to point out other Persons he intended sho'd take by
this Devise
It is a very usual Thing in Wills to construe the Word Issue,
Issue Male Heirs of the Body & such like to be Words of Purchase
that is a Designation or Description of a Person intended to take
It is a Rule of Law laid down in Shellys Case 160. 99. & other
Books that where the Ancestor takes an Estate or Freehold a
Limitation afterwards to his right Heirs or Heirs of his Body
are Words of Lim & not of Purchase As a Devise to a Man for
his life which is an Estate of Freehold & after his Death to the
Issue of his Body This makes an Estate tail as was adj'd King
a Melling 1 Vent. 225. But notwithstanding this Rule where
Issue in such a Devise appears by the Testors Intention to be
only Designation Personae There it shall be taken as a Word
of Purchase And the Testors Intent shall prevail ag't this
Rule of Law As in
Archers Case 1 Co. 66. cited FitzG. 24. Devise to A. for Life &
afterwards to the next Heir Male & the Heirs of the Body of such
Heir Male It was adj'd that A. took only an Estate for Life
And the Heir Male took by Purchase for Words of Lim being
grafted on the Word Heir shew it was used as Designatio PersotUB
& not for Lim of Estate (a).
(o) So Ledington & Kjrme post.
In a late Case betw. Pampillon & Voyce in 1728. before the
late Master of the Rolls Devise to his Son for Life Rem'r to
Trustees for his Life to support contingent Rem'rs Rem'r to the
Heirs of the Body of his said Son. Reversion to himself in Fee
Decreed the Son had only an Estate for Life And that th H irs
of his Body sho'd take by Purchase Abr. Ca. in Eq. 184. 30.
See also Bamfield & Popham Id. 133. 24. — Backhouse &
Wells cited in Shaw & Weigh FitzG. 22. Clerk & Day Ibid.
24. And Raymonds Argum't in that Case
[286] In all these Cases the words Heirs of the Body Issue
Male & Heir Male were construed to be Words of Purchase
notwithstanding the Rule of Law before mentioned The Testors
Intention appearing to be so which Intention in the two first
B308 VIRGINIA COLONIAL DECISIONS
Cases was collected principally from his grafting the Inheritance
on the Estate given to the Issue And so they are Cases directly
in Point to prove 1. that in a Will Issue Heirs of the Body et
similia are often taken as Designatio Personce or Words of Pur-
chase And 2. Especially where it appears the Testor intended
the Inheritance sho'd go to & vest in the Issue which is the Case
here as I shall shew presently
In the Case of Shaw & Weigh before mentioned the Qeustion
was whether Issue should be taken as a Word of Limitation or
Purchase Lord Raymond who delivers the Opinion of the Court
observes fo. J24. 25. that Issue in a Conveiance is a Word of Pur-
chase But in Wills it is governed & directed by the Intent of the
Party And adds when Issue is Designatio personce It can cany
only an Estate for Life to him whose Issue is to take by such
Designation
Now in the Case before us nothing can be clearer than that
by Heirs of the Body the Testor intended no more than a De-
scription of his Sons Children He has told us so himself meaning
says he his Children And then by the Rule laid down by Raymond
the Son can take no more than an Estate for Life But when we
consider what follows the Word Children in the Will the Matter
seems to be put beyond all Doubt or Question The W^ords are
** To whom i.e. the Children the Right & Inheritance of in & to
the said Land shall descend &go in Case they or aeny of them
survive him
Here are words of Inheritance grafted upon & annexed to the
Word Heirs or Children And therefore expressly the Reason
of Archers Case & the Case of Lodington & Kyme before cited
where the Words Heirs Male & Issue Male are construed Words
of Purchase even ag't an established Rule of Law that they shall
be Words of Lim where the Ancestor takes an Estate of Freehold
meerly because the Inheritance is limited or grafted upon the
Estate given to the Issue Here the Testor has expressed himself
in the clearest Terms that the Inheritance shall descend to the
Children And so the Case is rather stronger than those As it
does ex vi termini & in the most obvious Sense exclude the Father
from taking the Inheritance
Further the Inheritance is not limited to the eldest Son which
would make it look more like an Estate tail but to the Children
present & future if they or any of them survive him The Words
Children present & future & They or any of them shew he in-
BARRADALL'S REPORTS B309
tended [287] an equal Benefit to all the surviving Children & not
that one should run away with the whole as he will do in Case
Ralph is construed to take an Estate tail
In a few Words Can there possibly be a Doubt of a Mans
Meaning & Intention who gives Land to his Son & his Children
And then declares that the Inheritance shall descend to the Chil-
dren after the Fathers Decease which is the Sum & Substance of
the Devise before us What can be intended by such a Devise
but an Estate for Life to the Father & a Fee to the Children
To construe this an Estate tail in Ralph AH the latter Part of
the Clause where the Testator declares the Inheritance shall
descend to the Children must be entirely rejected & thrown out
of the Question contrary to a known & established Rule of Con-
struction that a Will shall be so construed as to make all the
Parts of it stand & all the Words have some Effect if they are
significant & sensible FitzG. 23. Fr. Raymond Now that these
Words are significant & sensible- can not be disputed Nay they
have a plain apparent & express Meaning & therefore they must
not be rejected And I insist upon it that they cannot have any
Effect or Operation but by the Constr. I contend for Which
Constr. gives them the Force & Effect they were intended for &
is plainly expressed viz. that the Children shall have the Inheri-
ance.
As the whole Will is before the Court I must beg Leave to take
Notice of a Circumstance w'ch may serve further to shew the
Testors Intention There was an elder Son than Ralph the De-
visee to whom the Testor gives 50;^. in Bar from ever claiming
any Part of his Estate From whence I think it is plain he in-
tended to exclude this eldest Son entirely from the Inheritance
But if this is construed an Estate tail in Ralph There is a Rever-
sion expectant undisposed of & which descended to the eldest
Son So that upon a Failure of Issue in Ralph the Estate would
come to him This cannot well be supposed to be the Testors
Meaning when he has given such a Legacy to his eldest Son
in Bar of his claiming any Part of his Estate Now by the Constr.
I contend for the Fee simple vested either in Ralph if he survived
all his Children or in the Children if they survived him And
so there is nothing left to descend to the eldest Son
Upon the whole I conclude that the Words of the Devise before
us can never be satisfied but by construing it to carry an Estate
for Life to his Son with a Rem'r in Fee to such of his Children
OS f ••> k . * tr . J^ . — ■>. .^it >.... k - « r^ ^ A ^Jr — . ^N.^ A ZnrZ... A x c^ •. w*
r:: T . -:ri»:-:i ii^* C.-ziinrrrjry ^n? 1 say 1 aT^rrr>eni i:r=5i t>e
the C'--nrLr- fr:m irrr F :-r:^ ic ibe IS'icis zrz^zz. vberioe ire are
It '2^v' Ravrr:— i L^eTn?^ r: A. ::r Lrfe A-f =: Case he shaZ
^ *■ ' '
have Israe Male i: ?:::h Is?:ie VaSe i: his Herrs :;-r ever Ani if
be iie -KT-b'.nt Isnie \!ale Red r ZTer Ai; i that A- took cnly
ai: Enate f'-T Life Ani •hat the Ii?ue t:»:k by Purchase the In-
bentai::^ being armexei 5l hrritc-i ^c the W:rd Issue
In this Case the C.-urt vere aZ clear-v of Ch>iii::n that the
Testc/T intended r.L:hir.z t=i:re than an Estate tan to Ralph
And that what -was aifei after Heirs of the Body should be
re3e-ct>ed as snp'erfuins Ani s.:* the Bill was dismissed April
Which I think a right Judgment .
Vass ag't Phillips
John Pen by his WiH Jan. 13. lOT^V de\-ises thus *' I give &
** bequeath to Ann Sharpe my Plantation &c " (the Premes
in Question ■ And after other Bequests follows this Clause ** And
'* for my Land w'ch I have given to Ann Sharpe if it should
" p!ease God to die without Issue I give to my Friend Tho's
" Harwar Otherwise to she & her Heirs forever"
The Question is What Estate Ann Sharpe took by this
Devise Whether an Estate tail or a Fee simple upon the Con-
tingency of leaving Issue at her Death If the former the Pit.
has a good Title Othen^-ise not
It must be agreed that by the first Part of this Devise Ann
t^y^k only an Estate for Life And it will be further admitted
I presume that if the second Clause had gone no further than the
Lim.tation over to Harwar It would have been clearly an
Estate tail in Ann The Doubt then & Difficulty if there is any
in the Case must arise from these latter Words ** Otherwise to
she & her Heirs forever "Whether these Words shew an In-
tention in the Tester to give any other Estate to Ann than
would have passed by the first Words if these had not been added
And I conceive not but that he intended an Estate tail & no other
Estate to Ann
It is a common Doctrine that the Intent of the Testor is the
BARRAD ALL'S REPORTS B311
Rule & Guide for expounding of Wills That this Intention is
to be collected not from any particular Sentence or Clause but
from the whole Will taken together And that to serve this In-
tention even Sentences are sometimes transposed
It is also a well known & settled Point that Issue in a Will
always [289] imports & is taken to mean Heirs of the Body
They are Terms equivalent & indeed are so taken in divers Acts
of Parliam't as Westm. 2. De Donis & 34. H. 8. of Intails settled
by the Crown 1 Vent. 229
This being premised I shall proceed to consider the Devise
before us The Testor when he first disposes of the Land to
Ann limits no Estate And consequently she could take only an
Estate for Life by that Part of the Devise as has been observed
Then when he comes to enlarge this Estate for Life & give an
Estate of Inheritance it is remarkable he makes Use of the
Word " Issue ** If she dies with't Issue Rem'r over which is the
same as if he had sayed with't Heirs of the Body This I think
plainly shews that the first & primary Intention of the Testor
was to provide for Ann's Issue as well as herself for it will be
granted me that this Limitation over upon a Dying with't
Issue would make an Estate tail if the Will went no further 3
Danv. 180. 7. 9. 181. 12. 1 Vent. 229. FitzG. 12. 25.
It is indeed an Estate tail by Impl. only but then it is by a
plain & necessary Impl. of the Testors Intention that the Issue
sho'd have the Land till the Rem'r took Place And in a Will
it is not material whether an Estate be given by Impl. or express
Lim It is the Intent alone that is to be regarded So that there
is really no Difference betw. a Devise to one & his Issue and a
Devise to one & if he die with't Issue Rem'r over Only in the
first Case he has an Estate tail by express Lim & in the other
by Impl. FitzG. 12.
If then this Devise be considered as a Devise to Anu & the
Heirs of her Body or Issue which is the same I would ask whether
when the Testor in the latter Part of the Clause comes to speak
again of Ann & her Heirs It is not reasonable to suppose he
meant the same Heirs he had just mentioned before If he did
there is an End of all Doubt & Difficulty in the Case
And that he did mean the same Heirs I think may be fairly
collected from the foil. Cons. 1. We know that in common speech
Heirs are generally applied to a Persons Children If a Man
leaves no Children it is common to say he left no Heirs And
^ 'V n *
lir _l=i T. Tv:
■ r. ., ^
ir= trrc £: Tr=j
'• 'Xr t H^:— r. i 'r: Ji. 11: 1 ?.:. ji_ %'.-. :. A rmr: hii
•'. r:e
''f
^ ■
t, , y-
.1^'."
^ff. -- -^-
: re mien fed Heir;
» • • • m
- — .^r -^ -. --J, - - •^^'V.
• '■•■<' • ^ /•'^ ^ '• ■» /■ ■<■ ■» • » ••
#^» X.*.', J. W^ . , ,. , ^ , »,
,^ ',\\\:.'/:.^rc. a J'rr.r.inzs 1 S^- 2-]-L. EKevise to the yrunger
V.:, ^ h:^ l:'r:r* :or*:ver And for T^'ant c: ?uch Heirs then to his
//V,r, r;;fr.* H'::r^ Ad;''! an Estate tail in the Ssn for the Tester
f;/;:* rr.'-^r, if'::r's of the Boc^- because the Son could not die
v./h't H'::r>, jf':r/I living Heirs of the Father
Y,\x//^ a P'rrr.r.all I Ro. A. S:iO. 7. A man devised Land to his
// />;iij 'r«i Ar;*^! if ^rith'rr dved before the other the one to be the
h^\,rn ll'-AT AT,f] if th^:y all died with't Issue Rem'r over Adj'd
tJi^' l)iiti*rH had an Estate tail for the latter Gause if they die
v/jthotit l</.uf: explains what Heirs were intended where it is
tiif/ff] that (juh sho'd }yc Heir to the other
l'\if"yft (lii^.t'S I think serve to prove two Points 1. that the
BARRADALL'S REPORTS B313
Word Heirs in the Understanding of People unskilled in the Law
or in Comon Speech as we say imports the same as Issue or
Heirs of the Body and 2. that the Word Heirs in a Will is often
taken to mean Heirs of the Body And the last Case proves further
that where the two Terms Issue & Heirs are both made Use of
in the same Devise It is taken that the same Heirs are meant
in both Cases Indeed the common Case of a Devise to a Man &
his Heirs & if he die with*t Issue Rem'r over puts this last Point
beyond Contradiction for it was never denied but that such a
Devise made an Estate tail And that Heirs in the first Part of
the Devise sho*d be intended such Heirs as are mentioned
afterwards viz. Issue.
And it is not material I take it whether Issue happens to be
mentioned first or last. The Intention is collected from the
Word more than the Manner of placing it As
A Devise to a Man & the Heirs of his Body And if he die with*t
Heirs Rem'r over makes an Estate tail (2 Vern. 281. [291] per
Cur.) tho Heirs of the Body are mentioned first & Heirs last for
it is supposed the same Heirs are intended in both Places
Indeed the first Words in a Will are often taken as the best
Expositors of the Testors Meaning and to serve as a Guide to
those that follow as in Buck & Frenchmans Case 1. And. 8. (It
is Tuck & Frenchman in Dy. 171) Devise to his Wife for Life
Rem'r to his Cousin & the Heirs Male of his Body And if he dye
with't Issue (not saying male) Rem'r over Adj'd the Cousin
had only an Estate in tail male for tho' the latter Words If he
die without Issue would make an Estate tail gen'l Yet Heirs
Male being mentioned before shew the Intention what Heirs
were meant In Godb. 16. It is sayed the same Point was adj'd
betw. Glover & Tracy
Which last Cases prove that Issue or Heirs of the Body being
named first or last does not differ the Case but a special Heir
being once named it is reasonable to suppose the same is intended
by the gen'l Term Heir And there may perhaps be this further
Reason too for such a Constr. that by Heirs comon People
generally intend Issue or Heirs of the Body.
But it will be objected to me I suppose that by this Constr.
the latter Words in the Devise Otherwise to she & her Heirs
forever are quite useless Ann would have had an Estate tail with't
them And it shall never be supposed a Man intends to make a
fruitless Devise
B314 VIRGINIA COLONIAL DECISIONS
I ans'r it is no uncommon Thing to meet with Tautology &
useless Repetitions in a Will Sometimes Words that are perhaps
strictly unnecessary are added for the clearer Manifest 'a of
the Testors Meaning And sometimes & that very frequently
thro' the Unskilfulness of the Writer We are to consider that
Wills are supposed to be made & indeed often are in Extremis
In a Mans last Moments when he has not Opportunity for
good Council or Advice & so are wrote by Men unskilled in the
Law It is for this very Reason that so great a Latitude is
allowed in the Constr. of Wills & strict & legal Forms dispensed
with
Now these Words might be added either by the Direction of
the Testor Ex abundanii to shew more explicitly his Intention
to give Ann an Estate of Inheritance which she had only by
Impl. before but then whether he did not mean the same kind
of Inheritance he had mentioned before is what must be sub-
mitted
Or these Words might be added thro' the Unskilfulness or
Wantonness of the Writer currente Calamo as we say FitzG. 29.
And supposing either of these to be the Case the Addition of
them can weigh nothing
But taking this Obj. in its full Strength allowing these Words
to be quite unnecessary to give an Estate tail to Ann which I
must grant Yet on the other Hand if it be considered that
here is an apparent Intention that the Issue of Ann sho'd have
the Land it must be submitted [292] whether so plain an Inten-
tion ought to be defeated by a Constr. collected from Words
the Meaning of which at best is doubtful Especially when another
Constr. may be made of those Words consistent with the appar-
ent Intention The Question in short is W^hether it be better
to follow Certainty or Doubt & Incertainty It is certain an
Estate tail will pass by the first Part of the Devise It is at best
but incertain what was intended by these latter Words
The Case of Banks & Banks (ante 283) heard the other Day
in this Court cannot be forgot
I rely on the Limitation over to Harwar in Case Ann die with't
Issue as what makes an Estate tail in Ann The Words Dying
with't Issue where they are general & indefinite not circum-
scribed by Time nor tied up to any Contingency alwa3rs make
an Estate tail in a Will I grant there are many Cases where
the Lim is upon dying without Issue before 21 or living another
BARRADALL'S REPORTS B315
or without Issue living that in leaving Issue at his Death that
it has been adj'd no Estate tail was created by those Words
Dying without Issue as Pell & Brown Cro. Jac. 590. which was
a Devise to one Son And if he died with't Issue living another
Son Rem'r over Hall & Deering Hard. 148. Devise to one & his
Heirs & if he die without Issue before 21. Rem'r over Collenson
& Wright 1 Sid. 148. where the Rem'r is limited upon dying
before 21. & without Issue living In all these Cases the 1.
Devisee was adjudged to have a contingent Fee because the
Dying without Issue could not be taken as Words of Lim being
either circumscribed & limited to fall within a certain Time or
tyed up to the Contingency of happening in the Life of another
But I think I may venture to say that there is no Case where
the Dying without Issue is absolute & indefinite as here that
these Words have been taken as Words of Contingency or to
speak more properly as Words of Determination but have' always
been taken to be Words of Lim either to enlarge or qualifie the
Estate given before I make Use of the Word Determination in
Opposition to Lim The latter has been just explained By the
form'r I mean where the Dying without Issue is constr. to be
only an Indication of the Testors Mind when he would have a
particular Estate given before determine & another Estate
given afterwards commence As in the Case just now cited of a
Devise to one & his Heirs And if he die without Issue before 21
Rem'r over Here the Devisee has an Estate in Fee determinable
upon his dying with't Issue before 21 . If he dies before that Time
his Estate determines & the Rem'r commences And so in most
of the Cases upon this Subject the Question is whether Dying
without Issue are to be considered as Words of Lim or of Determ.
Hard. 148.
[293] Now to consider the Case before us in this View whether
Dying without Issue are to be taken as Words of Lim or of
Determ It will I think be pretty evident they could never be
intended the latter for by the 1. Part of the Devise Ann has only
an Estate for Life And if Dying without Issue are construed as
Words intended to shew when that Estate sho*d determine
this Absurdity will follow that Ann took an Estate for Life
Determinable upon her Dying without Issue Now the Rule is
that a Testor shall never be supposed to intend Absurditys
And therefore any Constr. having such a Tendency ought to be
rejected Then I believe in all the Cases where Dying without
B316 VIRGINIA COLONIAL DECISIONS
Issue are construed Words of Detenn an Estate of Inheritance
was given before. Q CoUenson & Wright seems not so
I beg Leave to observe further the Force of the Words Dying
with't Issue where they are general as here I know no Instance
where they have not been adjudged to make an Estate tail And
that sometimes ag't a seeming Intention of the Testor to the
contrary As where an express Estate for Life is first limited
which is the Case of King & Melling 1 Vent. 214. 225. In Hales
Time The Case was a Devise to the Son for Life And after his
Decease to the Heirs of his Body by a 2. Wife And for Want
of such Issue Rem'r over with a Proviso that the Son might
make a Jointure to his 2. Wife Here was an express Estate for
Life The Lim to the Issue was after the Sons Decease And there
was a Power to make a Jointure which was unnecessary if an
Estate tail was intended Yet notwithstanding these Objections
such was the Force & Operation of the Lim to the Issue And for
Want of Issue RemV over that it was adj'd to make an Estate
tail in the Son This is looked upon as a leading Case and the
Authority of it has never been shaken
So in the Case of Shaw & Weigh FitzG. 7. heard in the House
of Lords April 1729. which as to this Point was a Devise In
Trust for his 2 Sisters during their Lives without committing
Wast And if either of them happen to die leaving Issue or Issues
Then in Trust for such Issue or Issues of the Mothers Share
Or else in Trust for the Surviv'r or Survivors of them & their
respective Issue or Issues And if both my said Sisters die
without Issue & their Issue or Issues die without Issue Rem'r
over Here it was obj . that an express Estate for Life was given
& the restraining from committing Wast was a plain Indication
in the Testor to pass no greater Estate for it would have been
impertin't to add such a Clause if he intended an Estate tail
because such a Power is incident to an Estate tail And it could
not be thought he would restrain from committing Wast And
yet put it in their Power to alien the whole Land as Ten't in tail
might do by docking the Intail. There are other Circiunstances
in the Devise that are taken Notice of to prove the Testor
intended only an Estate for Life But it was argued on the other
[294] Side that the Word Issue in a Will is a Word of Lim &
being devised first to the Sisters & afterwards to their Issue And
for Want of Issue Rem'r over it made an Estate tail And so it
was adjudged.
BARRADALL'S REPORTS B317
These Cases shew how forcible Issue or a Lim upon dying
without Issue are in a Will They create an Estate tail by Opera •
tion of Law as Hale said in King & Melling supra Went. 232.
*Tis possible the Testor intended but an Estate for Life Yet by
Consequence & Operation of Law it is an Estate tail according
to the Rule in Shellys Case 1 Co. 99. Where the Ancestor takes
an Estate of Freehold And there is a Lim afterwards to his Right
Heirs or Heir of his Body that they are Words of Lim & not of
Purchase Issue in a Will is equivalent to Heirs of the Body
And it matters not whether an Estate given by Will be by Impl.
or express Lim & therefore according to this Rule A Devise to
one And if he die with't Issue Rem'r over would make an Estate
tail by Operation of Law if there was not so apparent an Inten-
tion from the Words as I conceive there is in the present Case.
But we have no Occasion to rely on the Operation of Law Because
no express Estate for Life is given And so our Case is stronger
than either of those last cited.
I must not omit to mention the Case of Timson & Robertson
Adj'd this Court which was a Devise to one & his Heirs And if
he died before 21 or without Issue Rem'r over Here notwith-
standing there was a seeming Intention to restrain the dying
without Issue to the Age of 21. Yet it was held to be an Estate
tail The words there in my humble Opinion were much stronger
to create a contingent Fee than in this Case
Obj. The Testors Intention is plainly this First to give Ann
an Estate for Life Then if she happen to die with't Issue to
Harwar Otherwise that is if she leaves Issue at her Death
to her in fee And so she took a Fee simple upon the Contingency
of leaving Issue at her Death
Ans. By this Constr. the natural Force & Import of the Words
Dying with't Issue must be rejected Had the Words been if she
happen to die leaving no Issue or without Issue living or any
other Word added to shew that he intended to restrain the
generality of the Term Dying with't Issue there might have been
some Colour for such a Constr. But it being left absolute & at
large here To make such Constr. must confound the Distinction
that has been always kept up betw. a Lim upon dying with't
Issue generally & where it is restrained to a particular Time
or tied up to some Contingency The Cases that I have cited
and all the Cases that can be cited will shew they turn upon this
Distinction. Besides as it was so easie for the Testor [295] to
B318 VIRGINIA COLONIAL DECISIONS
have added a Word or two in Case he had any such Intent It
is reasonable to infer from his not doing so that he had no such
Intent.
As for any Stress that may be laid upon the latter Words
** Otherwise to she & her Heirs for ever *' It has been answered
already They might be thrown in thro' the unskilfulness of the
Writer Or they might be superadded to shew more expressly
the Testers Intention to give Ann an Estate of Inheritance
But then we say having made Use of the Word Issue before
in the same Clause It is natural to conclude he meant the same
Heirs in both Places
We think it apparent the Testor had an Intent to provide for
Ann s Issue as well as herself That he never intended the Rem'r
to Harwar sho'd take Place so long as there was any Issue of
Ann Ahd in Consequence that he intended the Issue sho'd have
it in the mean time till the Rem'r took Place And then it is clearly
an Estate tail We think this appears to be his first & primary
Intent And we submit whether Constr. ought not to be made
to serve that Intent rather than a different one prevail that will
entirely destroy it And we hope it will be considered that this
latter Constr. is to be inferred only from a few loose Words added
perhaps by Chance And w'ch at the same time may very well
bear an Interpretation consistent with the Constr. we contend
for.
We rely on the Case of (a) Banks & Banks where superfluous
(a) Ante 283.
Words added after the Lim of the Estate tail were rejected
Because the meaning of them was doubtful And upon the Case
of Timson & Robertson where the Words ** Dying before 21 "
were rejected to make way for the more express Intent collected
from the Words Dying without Issue to make an Estate tail
Obj. But the Rem'r to Harwar gives him only an Estate for
Life And it is absurd to suppose the Testor would give such
an Estate after an Estate tail
A. This is no uncommon thing in Wills often (as has been
observed) wrote in a hurry & without Council or Advice In
the Case of Webb & Herring cited above the Estate given to the
Dau'rs in case they survived the Son & his Heirs was expressly
for their Lives Yet this was made no Obj. but adj'd an Estate
tail in the Son Even where the Rem'r has been adj'd void in
BARRADALL'S REPORTS B319
point of Lim Yet it has been adj'd an Estate tail by force of the
Rem'r as Nottingham a Jennings ante 1 Sal. 233. So that noth-
ing can be inferred from the Nature of the Estate given to Har-
war to shew the Testors Intent one way or other
Obj. A latter Devise controul a former And here the latter
Words give a fee
Ans. I agree where two Devises are inconsistent with each
other As where by the first Land is given to A. & by the second
to B. There [296] perhaps the latter Devise shall prevail That
which is last wrote being presumed to be the Testors last Will &
Mind But this Rule cannot hold where the same Thing is twice
devised to the same Person There it is to be collected from the
whole Will what Estate the Testor intended to pass And it is
not always the last any more than the first that is regarded
This is evident from the Case of Buck & Frenchman ante The
1. Devise was to the Heirs male the latter to the Heirs of the
Body Yet it was held to be an Estate in tail male Here the first
Words guided the Constr. In King & Remball ante Heirs are
mentioned in the 1. Devise & Issue in the latter This was adj'd
an Estate tail Here Constr. was made from the latter Words
From these Instances it is plain that the Intent is collected from
the whole Will And sometimes the first sometimes the last Words
govern the Constr.
Obj. An express Estate shall not be destroyed by an Estate
by Impl.
Ans. That is true taken thus: An Impl. of an Estate of
Inheritance shall not ride over an express Lim of an Estate
of Inheritance before 1 Vent. 230. per Hale This was I take it
the reason of the Resolution in Popham & Bamfield 1 Sal. 236.
Devise to A. for Life Rem'r to his first Son in tail male & so on
to the tenth Son And if A. died without Issue male Rem'r over
Here A. having an an Estate for Life & an Estate of Inheritance
being limited to the Sons they could not collect a contrary Intent
by Impl. to give A. an Estate tail.
But it is far from being a gen'l Rule that an Estate by Impl.
shall never prevail ag't an express Estate The contrary is
evident from the Cases of King & Melling & Shaw & Weigh
before remembered As well as from the Common Case of a Devise
for Life And if he die with't Issue Rem'r over which was never
denied to make an Estate tail notwithstanding the express
Estate for Life FitzG. 12. Apr. 1739. Judgm't was given for the
B320 VIRGINIA COLONIAL DECISIONS
Deft. viz. that it was an Contingent Fee having been so adj'd
once before in 1730. The Courts Opin. seemed to turn upon the
Word Otherwise which they sayed shewed plainly an Intention
to give a different Estate if Ann had Children.
For the Pit. For the Deft.
Lee, Tayloe Lightfoot, Randolph
Custis & Digges Dandridge, Grymes
Carter Byrd & Blair
[297] OCTOBER COURT MDCCXXXIX.
Smith a Smith Ej.
Mary Smith seised in fee Mar. 2. 1702. makes a Deed poll
in these Words ** For the natural Love & Affection that I bear
to my Son Geo. Smith I do make this my Deed of Gift of the sd.
200 A. of Land (the Premes in Question) unto him the s'd Geo.
Smith & his Heirs forever after my Decease But it is my true
Intent & Meaning to have free Ingress & Egress into all & every
Part of the s'd Premes during my natural Life And if it shall
happen that the s'd Geo. Smith shall die without Heirs Then I
give the s'd Land to my Son John & his Heirs forever "
G. Smith died with't Issue in the Life of the Grantor After
whose Death she with her 2d Husband Fairfax conveied the
Premes in Queon to the Deft. & is since dead The Lessor is
Bro'r & Heir of Geo. Smith
The only Question in this Case is Whether any Estate passed
to Geo. Smith by this Deed for if any Estate did pass I think
it cannot be disputed but that it was a Fee simple And then the
Lessor of the Pit. as his Heir has a good Title
The Objection I apprehend will be that the Estate being
limited to him after the Death of his Mother is void For that
a Freehold can not be limited in prcesenti to commence in futuro
It must be agr'd that the Maxim of the Comon Law is A
Freehold shall not commence in juiuro But since the making
of the Statute of Uses the Maxim has in a Manner lost all its
Force & Effect for it is universally agreed that the Maxim will
not hold upon any Conveiance by Way of Use but only in Con-
veiances at the Comon Law as we call them It will be therefore
necessary to see whether this Deed is to operate as a Conveiance
at Com Law or as a Conveiance to Use
BARRADALL'S REPORTS B321
The Distinction between these two kind of Conveiances is
well known Conveiances at Com Law are such as were in Use
& Practise before the Stat, of Uses 27. H. 8. Conveiances to
Use are such as have been introduced since the making of that
Statute The different Rules of Construction upon the one &
the other of these Conveiances are as [sic] well known Conv.
at Com Law are construed strictly according to the strict & rigid
Rules of the Com Law But Conv. to Use are allowed a more
liberal Construction They participate in some sort of the
Nature of Wills They are construed according to Equity &
the just Intention of the Parties The reason of this Difference
I shall have Occasion to shew presently 1 Inst. 49. a. 1 Vent.
138. 373. Nel. Sut. 242. Poll. 525. 8 Rep. 93. 3 Lev. 370.
But I will first beg Leave to examine a little the reason of
the Maxim just now remember'd viz. That a Freehold shall
not commence in futuro It is regulariy a Rule of Law that the
Freehold shall never be put in Abeiance that is so as not to be
existing in some Person And both this Rule & the Maxim we
are speaking of are [298] founded upon this reason that there
may be always a Tenant to the Precipe I say regulariy the
Freehold shall not b? in Abeiance because in some Instances
Ex necessitate rei it may be so As where an Incumbent dies till
the Church is full again &c. Co. Litt. 342. 343.
For the clearer Understanding of this it may be necessary to
explain what is meant by Tenant to the Precipe Anciently till
within 200 Years or less Where a Man was disseised or had a
Title to Lands he had no Remedy to recover the Possession but
by a real Action (Ejectments are an Invention of later Times)
Now the first Process in real Action is called a Precipe And the
Law requires that the Deft, or Person ag*t whom such Precipe
is brought sho'd have a Freehold in the Land whence he is called
Tenant i.e. Tenant of the Freehold It is obvious then that if
the Freehold could be put in Abeiance so as not to be existing
in any Person A Man who had a Right to recover the Possession
of any Lands could have no Remedy for want of a proper Person
ag*t whom to bring his Precipe And this would be the Conse-
quence of it in a Conv. at Com. Law a Freehold might be
created in prcesenti to commence in futuro Because in all such
Conveiances there is a Transmutation of Possession And no
Estate left in the Grantor And therefore as the Freehold would
be out of him by the Conveiance if it should be allowed to be
»•:
^^'-.i V-'.r*r •::.? ^n:j':i': *: z*z i--rLrrzjz'Z xs x L.:n:v=^i^:\: tz
'^^^r. •T':'?- t'xk 2. T'-oi E-ns.*^ ly "^^^T" '■- riTzr^ Use. Tr-e^e
• —
V-'/'h.r^. •', t'or V:',-*^r_:*: "hat :l5 ibr Enaie intcniel t-: 're rassei
.- 4,. ^/ *t .- -rSt - . *» > A.- -S "T J^ T^ -.. ^SiiSv^.. i. O LXT • . Ot *-
i - ^ ♦V-,— ■^.•-— ^ .- ^ *"_:,-£.-« '^*.^'«- "--«i;i'"~»*^ '— *-,s. 'A a V %«~ as •^ r^Vt*
* »• »» • « a «» • m
Vi'av Ar.'f •?.:% v.Tr.^tirr.r^ az't tr.e serrr.rr.g^ Litenticn cf the
Pan:/'.? an *,/> th^ rr.ar.r.^r if Oz^eratim Thev ccnsiier ihe
\/:\rjr.y^. \r*,hr,\v.r. that is the Passing of the estate Ani c-c-n-
*tr-i': th'r I>:':'i SO as to fulnl that Intent: :n And they will
\'^f'i\ rj"'rT s'-iff'rr a De^d to be defeated or to have no Effect
'\i hv ar,v M^ans th^rv can constme it so as to give it the Effect
ir.Vrr.^'"d I»rd Hobart who lived about IW years ago commends
thv'/r J'i']y/-s viYiO are curious & even subtil to invent Reasons &
M'-ar.s to rraici D^-eds effectual according to the just Intention
of the Parties Hob. 277. And Sir M. Hale quotes this Passage
upon tv/o Occasions as an excellent Rule for Judges to follow
1 V/nt. 141. 378.
The Ij^r-d l^rfore us can operate onlv 3 wavs Either as a Feoff-
I ^ ^
rnent a Bar^^ain & Sale or a Coven't to stand seised the first is
a Conv. at G^^mon Law the two latter are Conv, to Use Every-
bo<^ly knows that Livery of Seizin is necessary to a Feoffment
Arjd that in Conv. to Use there must be a good Cons, to raise
the Use This Deed cannot operate as a Feoffment for want of
Livery It cannot operate as a Bargain & Sale for Want of a
l;roj>er Cons. viz. the Paiment of Mony which is the only good
Cons, to raise an Use by Way of Barg. & Sale 1 Vent. 137. If
therefore it do(!S not operate as a Coven't to stand seised it must
be absolutely void & can have no Effect at all The Intention of
BARRADALUS REPORTS B323
the Grantor in making it must be entirely defeated And how
consistent that will be with the constant Resolutions of^ the
Judges will best appear from the Cases themselves
The first I shall take Notice of is Tebb & Popplewell 2 Ro.
Abr. 786. (40. Eliz) A Woman in Cons, of Marriage to be had
between her & one F. by Deed inrolled gave granted & confinned
Land to A. & his Heirs with Clause of Warranty but no Livery
was made The Deed being inrolled shew'd an Intent it sho'd
operate as a Barg. & Sale The Words give & grant & confirm
which are proper to Conv. at Com. Law shewed an Intent it
sho'd operate as a Feoffment But because it could not operate
as the latter for Want of Livery nor as the former for want of
a good Cons. viz. Mony Therefore rather than the Deed should
be void it was adj'd a good Use did arise to A. by Way of Coven't
to stand seised there being a Cons, proper to raise an Use in such
a Conv. viz. Marr. N. B. It is not expressly sayed to operate as
a Cov't but it could no other Way. Poll. 534. takes it so
The next that I find in Order of Time is not till after the
Restoration viz. 22. Car. 2. Crossing & Scudamore 1 Vent. 137.
2 Lev. 9. 1 Mod. 175. A Man in Cons, of natural Love gave
granted barg. sold aliened enfeoffed & confirmed to his Dau*r &
her Heirs There was a Cov't for quiet Enjoym't & a Warranty
in the Deed And the same was Inrolled It was obj. as in the
last Case that the Deed could not operate as a Barg. & Sale for
Want of Cons, that the Words of the Deed & the Cov't & Warr.
were proper to Conv. at Com. Law And it was not the Intention
the Est. sho'd pass by Way of Use But it was adj'd that the
Words give & grant &c. would raise an Use And that since it
could not operate as a Barg & Sale it sho'd as a Cov't to stand
se sed Notwithstanding the Inrollment rather than the Deed
sho'd be defeated.
[300] 29. Car. 2.) Walker & Hall 2. Lev. 213. A Man in Cons, of
Marr. gave granted & conf . to his intended Wife with a Lre of
Atto. in the Deed & a Blank for the Attorneys Name A mem.
was indorsed that Livery was made by but no Witnesses
to the Livery Here it was obj. that the Intent appeared plainly
to make a Conv. at Com. Law viz. a Feoffment But because
the Deed could not operate as such for Want of Livery It was
adj. to enure as a Cov't to stand seised that the Deed might
have its Effect.
30. Car. 2.) Coltman & Senhouse 2 Lev. 225. 2 Show. 11. T.
B.:;24 VIRGIN'LV COLONIAL DECISION'S
Jo. iO-x VJ... 523. A- ty Inine betw. bin & his Mother cove-
r.ar.tec & a^-reed ihat if he died with cut Issue of his Bodv That
then he gave grhnze-^ & cor. rnr.ed to his M:ther There were
se% .. v.^** »b ^TZfi/T »o k.ms ixi &ne x^^eeo &rc'in v^iL^e jl*c ^^^ y •.o ^^^e dou
Ai:d the Cons. ex::res5ed was fcT the Advancem't of the Son
The Qhiestioc was Whether this Deed sho'd cperate as a Cov't
Uj stand seised And tho' it was cbj. thai it seemed rather an
Agreem't to compose Matters betw. Moth. & Son & that it
rested onlv in Cov't & there was no Cons, to raise an Use to the
Mother Yet it was adj'd that a good Use was raised bj' Way
of Cov't to stand seised That being the Intent of the Parties
And saved that where the Intent app'rs to pass an Estate but
the Conv. is defective it shall be supplied & made good bj* Way
of U e to fulfil that Intent And here the Intent was manifest
that the Moth'r sho'd have the Esta. if the Son died with't Issue
N. B. the Judgm't in this Case is misprinted in Poll, being
sayed to be for Pit. instead of Deft. All the other Rep'ts are so
And the Case is alwa3"s cited as so adj'd 3 Lev. 372.
The Argum't & Judgm't here are full to both Points of this
particularly in Poll, quern lege
1 W. & M J Harrison & Austin Comb. 128. Carth. 38. 2 Mod.
237. A. by Deed Poll reciting that he had no Issue & that it was
his Intent if he died with't Issue that his Lands sho'd remain in
his Blood & Kindred In Cons, of natural Love gave granted &
conf. to B. his Neice To the Use of himself for Life Rem'r to
the said B. in tail Afterwards he made a Feoffment & the Xeice
entered for the Forfeiture In this Case the Neice having only an
Estate for Life granted to her out of w'ch the Uses sho'd arise
the RemV to her in-tail could never take Effect if this Deed was
construed to enure by Way of Transmutation of Possession
Because an Use cannot be larger than the Estate out of w'ch
it rises It was therefore adj'd to operate as a Cov't to stand
seised because it could not take Effect any other Way to give
B. her Rem'r in tail
N. B. this Case was adj'd ag't the Grantor himself 2 W. &
M. ) Lade a Barker 2 Vent. 260. 3 Lev. 291. 4 Mod. 149.
[301] A Father in Cons, of natural Affection & 5£, gave 8c
granted a Rent charge to his Son The Deed was not inrolled
here nor any Attorum t for Want of w'ch it was obj. it could not
take Effect as a Grant w'ch was allowed but adj'd it sho'd
enure as a Cov't to stand seised there being a Cons, of Affection
BARRADALL^S REPORTS B325
5 W. & M. ) Osman & Sheaf 3. Lev. 370. 2 Lut. 1205. A Deed
was made in these Words ** Know ye that I Mary Waller for the
** Affection I bear to my Cousin Sir W'm Brodman do give &
** grant to him & his Heirs my Rent of 1^£. p ann. to hold to him
** & his Heirs from & after my Decease if I die with't a Son of
•* my Body Hving at my Decease" The Question was whether
any Estate passed to Brodman The Obj. was that the Deed
was intended to operate as a Grant by the Words give & grant
And then there was a Freehold to commence in futuro And so
the Grant void But adj'd it sho'd operate as a Gov't to stand
seised as it could take Effect no other Way rather than the Deed
sho'd be void. I submit if this be not a Case in Point
9 W. 3. ) Sleigh & Metham Nel, Lut. 242. J. C. in Cons, of Marr.
& a Portion to be paid did cov't grant & agree (not saying with
or to whom) All that Mess. &c. to the Use of himself for Life
Then to his Wife for Life for her Jointure with Rem'r over It
was obj. this Deed was senseless there being no pson named
with whom it was covenanted that Words must be added to make
the Sense perfect w'ch was never allowed But adj'd the Deed
sho'd operate as a Gov't to stand seised and that the Court
would supply Words to make the Deed sensible viz (to be)
And then he covenanted the Land to be to the Use &c. And
this to support the Intent of the Parties & that the Deed might
not be defeated
From these Cases it appears that the Judges will always con-
strue a Deed to operate that Way w'ch will most effectually
ans'r the Intent of the Parties That no precise Form of Words
is necessary to make a Deed operate this Way or that That
even where there is a seeming appearance upon the Face of the
Deed that the P. ties intended a Com. Law Gonv. Yet to support
the princ. Intent of the Parties viz. the passing the Estate they
will construe it a Gonv. to Use In short that they will even
supply Words where they are wanting rather than a Deed shall
be void or have no Effect
Now in the Case before us the Argum't is much stronger that
the Deed sho'd operate as a Gov't to stand seised than any of the
Gases cited for besides that the Deed must be utterly void &
have no Operation at all if it be not so construed The Cons,
viz. Affection is purely appHcable to such a Gonv. & no other
There is no Gov't Warranty or other Circumstance upon the
Face of the Deed to shew it was intended a Com. Law Gonv.
t^yy. ^IRGIXIA CClG}rL\L lECISIOXS
to. ^ .A
as the Ictetit is eriie::! as tc ca-syrrz th* Estate what good
R-taaC-:: can be zrre:: wriv Ctr^tr. shc^d net be made tc serre
that Intent rather than the r>eed be \r.i'± Ui nrs iib:^£f rt:Je\2f
qu.zm fert'ZX. Vti. Mace. R. -K*.
Thtis havrnz she^rn that this Deed by aZ the Rnks of Ccnstr.
ifch have prevailed fcr mere than a Centary past ccght to be
<xr-^tr as a C/jv't to stani seisei
The 2- Flint tc be proved is that ta'^-rrg it as such the Estate
limited to Geo. Smith after the EVeath cf the Grantor is good bv
Wav of F-ture Use
Tr.is I hope is in a great Measure evident from the Cases that
have been cited I will hcwever beg Leave to examine the Thing
to the Bottom And I will begin with consiiering the Xatnre of
Uses
Before the 27. H. S. Uses were nothing more than secret
Tru.s^s & subject only to the Cognizance & Jurisdiction of a
Court of Equity For if a Man conv. Land to others to the Use
of himself The Estate of the Land was in the Feoffees And the
Cestui que trust had only a Right in Equity to take the Profits
And if the Feoffees refused to suffer him His on'v Remedv
was to compel them in Chanc. 1 Rep. 134. b. S Mod. 1S6.
It is sayed the princ. Inventors of Uses were Fear & Fraud
Fear in the Times of Ci^^l Wars particularly those betw. the
Houses of York & Lancaster to skreen the Estates from For-
feiture Fraud to cheat the Lord of Wardships Escheats &c.
And to hinder Ten*ts to Precipes from being known Far. 71.
1 Rep. 123.
These Mischiefs being great were fit to be remedyed For w'ch
the 27- H. 8. was made. Ths Stat, unites the Possession to the
Use So that now whoever has the Use has also the Possion &
the Estate in the Land But still these Uses preserve so much of
their ancient nature as to be constr. according to Equity &
Conscience & not according to the strict Rules of the Com.
Law as is evident from the Cases that have been cited Where a
Deed declares the Intent & only wants some Words Or declares
it so as that it suits not with the Rules of Law in other Conv.
Yet if the Intent be plain such as Eqtiity before the Stat, would
have decreed The Stat, has done as much & executed the
Possion to the Use Poll. 527.
BARRADALL'S REPORTS B327
Now I believe it will not be disputed but that if a Feoffment
had been made bef . the Stat, to the Use of a third Person after
the Death of the Feoffor Equity would have compelled the
Feoffee to suffer such third Pson to take the Profits after the
Death of the Feoffor And if so the Stat, had done the same in
our Case as Equity would have done before it was made
It is a Rule in all Conv. to Use that so much of the Use as
is not disposed of is in the Owner of the Land 1 Inst. 22. b. As if
a [303] Feoffm't be made to the Use of a Mans Will or to the
Use of another 20 Years hence or after the Death of the Feoffor
In all these Cases the Use is in the Feoffor by Result or Impl.
till the future Use comes in Esse So in Cov'ts to stand seised
as there is no Transmutation of Possession but the Estate in the
Land out of which the Uses are to arise is in the Covenantor
Where any future Use is limited the Use remains in the Cove-
nantor till the future Use comes in Esse Vid. 6 Rep. 18. Poll. 58.
65, 66. 1 Vent. 374.
Woodlet & Drury 2 Ro. Abr. 791. A Man made a Feoffment
& declared the Uses to be after Marr. betw. him & A. to himself
& the s'd A. & their Heirs Adj'd that a good Estate for Life
was raised to A. after Marr. And that the Feoffor had the Use
till the Contingency happened
Lord Pagets Case cited in Rector of Chedingtons Case 1 Rep.
154. Lord Paget covenanted to stand seised to the Use of a
Stranger for the Life of him the Covenantor And after his De-
cease to the Use of two others for 24 Years And after the Exp.
of that Term to the Use of the Son of the Covenantor in tail It
was adj. that the Uses to the Stranger & for the Term were void
for want of a proper Cons. And so the same as if no Use had been
limited but that the Use to the Son was well raised And that
by Operation of Law Lord Paget had an Estate for Life the Use
rem*g in him till his Death At w'ch time the Use to the Son was
to commence.
Pibus & Mitford 1 Vent. 372. A man cov'ted to stand seised
to the Use of the He rs of his Body by a 2d Wife Ad j . that he had an
Estate for Life rem'g in him the same not being disposed of (And
so he was Ten't in tail)
These Cases shew that in Conv. to Use so much of the Use
as is not desposed of is in the Covenantor as has been mentioned
Xow in the Case bet. us the Est'a limited to Geo. Smith not
being to commence till after the Decease of his Mother the
B32S VIRGINIA COLONIAL DECISIONS
Covenantor The Use in the meantime remained in her vLz.
during her Life From whence it is clear the Freehold bv this
Deed was never put in Abeiance There was always a Tenaci
to the Precii>e So that the Grounds &: Reason of the Maxim
that a Freehold shall not commence in jtUuro fail in this Case
And consequently the Maxim can't affect us acc'd to the RuJe
Cessanie ratione legis cessai ipsa lex.
But the Cases of Coltman ^ Senhouse & Osman 8c Sheaf before
rcrmembered are fuUer to our Case than those last cited The
first is ** It he sho'd happen to die with't Issue Then he did
** give grant & conf . to his Mother " Here the Estate was to
commence after the Death of the Covenantor with't Issue The
other is an express Grant '* To have & to hold after the Death
of the Grantor Yet both these Lim. were held good by Way of
Use And to serve the Intent of the [304] P.ties the Deeds were
constr. to operate as Gov'ts to stand seised Notwithst. the Words
made Use of were Words of Con v. at Com. Law And tho' by the
whole Form & Structure of the Deeds they were as unlike such a
Conv. as ours can possibly be sayed to be
This Point is not altogether new in this Co'rt It came in
queon in the Case of Lawson & Connor adj'd here in Oct. 1731.
w'ch as to this Point was shortly thus. ** Antho. Lawson seised
of 850 A. & 100 A. by Deed gave & granted one Moiety to one
Fulcher during his Life & after his Death to revert to him the
Donor And after his Decease he gave one half of the 850 a. to
his Son Tho. his Heirs & Ass. To be possed immediately after
** his Decease & the other half & the 100 a. he gave to his Son
** Antho. in the same Manner. One Question was Whether any
Est 'a passed to Antho. And adj. there did arise a good Estate
to him by Way of Use The Deed being constr. too perate as a
Gov't to stand seised And so no Want of a particular Estate
to support the future Use the Est. rem. in the Covenantor till
the Estate to the Son commenced. Hopk, Mss. A. penes me [sic]
25, 37. And a Mem. that Mr. Rand, who was of the other Side
agr'd the Judg't was right
This Case I take to be much stronger than ours for here the
Deed as to the Est. granted to Fulcher could not operate as a
Gov't to stand seised but with Respect to him it must operate
as a Conv. at Com. Law And yet because the Estates to the Sons
could not be supported or have Effect but by such a Constr.
To serve the Intent of the Party w'ch was apparent to pass such
BARRADALL'S REPORTS B329
Estates to the Sons And because the Deed might not be defeated
It was constr. to enure as a Gov't to stand seised. W'ch Resolu-
tion is consistent with the Cases that have been cited And I make
no Doubt but the like Constr. will be made upon our Deed
Obj. Pitfield & Pierce 2 Ro. Ab. 789. Mar. 50. (15 Car.) A
Man gives & grants to his Son after his Decease To hold to him &
the Heirs of his Body Rem'r over. There was a Proviso that the
Son sho'd pay to the Fa'r 8;^ . fr Ann during Life the Lords Rents
& all other Duties. Adj. no Est. passed to the Son by this Deed
For they would not construe it to operate as a Cov't to stand
seised because they sayed it did not appear that the Grantor
intended to make himself only Ten't for Life being granted [sic]
after his Decease before the Habendum And that the Intent was
to convey at Com Law These are the Reasons in Rolle
A. This is the Case commonly relied on in Questions of this
sort but has never had any great Weight It is contrary to
Tebb & Popple well w'ch was before it in Point of Time And the
Authority of it is quite pared away by 50 different Resolutions
since
Besides accord, to Hale 1 Vent. 141. the principal Reason of
the [305] Judgment was the absurd Contrivance of the Deed
reserving an Est. for Life to the Father & yet providing for Pai-
m't of Rent to him by the Son And the Judges would not help
out a Deed so contradictory & repugnant in itself. In Poll. 529.
It is sayed the Case was not adj. on much Debate And that Croke
& Jones both Reporters of that Time & Judges of the Court
take no Notice of it To w'ch may be added that acc'o to Rolle
the Judgm't turned upon the Intent of the P.ty not in the Subject
but in the Shadow viz. the Manner of passing w'ch has been
since quite exploded Many Judgm'ts having been given ag't the
seeming Intent of the Pties as to the manner of passing the
Estate rather 'than the Deed sho'd be defeated As is evident
from Crossing & Scudamore & other Cases cited above.
Obj. Osborn & Bradshaw Cro. Jac, 117. Father in Cons, of
Love bargained sold gave granted & conf . to the Son & his Heirs
The Deed was inrolled Held the Land sho'd not pass unless
Money had been paid
Ans. Al that can be collected from this Case is that it was
held the Deed was not good as a Barg. & Sale because noMony
was p'd It does not app'r that it was adj. it could not operate
as a Cov't to stand seised nor was there Occasion to argue that
^ « ^
:ci itt^TJiT ::i- 'Z'l'isiic JLiii si
•m •• ^"^
^y- 3c^ ' '^T^ ^ Zi*" — **i^— iJlJi^^
<*»'!-'* '-^.i- y/^-T
?>*: rv.^f^ upo^ an Use
O'.;. Sadon & j^-zjss 2 Vrtrt. SIS. A ilan in Ccns. :: A5ect::n
'..', ':.:\ V»' re Son & Dau'r g^ave granted ^ cc-nf. 10 the Sen Ti-
r,'/.': v> r. m & his Henrs To ihe Use c: Gran*.:r for Lne Rem to
*.:,'z Vr::> for L::e Rez: v^ the Son in tail Rem to the Daa'r Deed
▼*'a-, not ezeotitA-f by Liv^iry or Inrollmt So the q. was whether
:t -.ho'l ot/^rate as a Gov't to stand seised or be vcid Adj. it sho'd
r,ot '/Tyernate as stich Because the Intent was at:t:arent to transfer
the P>.t. to the Son & that the Uses shotild arise out of his Est.
^j tr.at :t must have oftered a manifest Violence to that Intent
to 0/yr.st.r. it a Gov't to stand seised In w'ch Cases the Uses arise
out of the Est- of the Govenantor
[''/)^'f] Ans- It was this plain Intent that the Deed sho'd take Effect
by Transmutation of Possion that was the sole Reason of that
yy\ym t But unless some such Intent is pointed out in this Case
the Revolution will not help but rather be for us Because there
is an exy^ress DecL of a contr. Intent in our Deed viz. that the
O^venantor sho*d have the Estate duiing her Life From whence
it is plain she did not intend to change the Possion or as we say
that the Deed sho'd take Effect by Transmutation but rather
in the Manner we contend for by Way of Gov't to stand seised
Davis & Speed 2 Sal. 675. 4 Mod. 153. Show. P. C. 104.
Htjsb'd & Wife levy a Fine of Wifes Lands to the Use of the
BARRADALL'S REPORTS B331
Heirs of the Body of the Husb. by the Wife Rem to Husb. in Fee
Husb. Wife & Issue all died Q. was whether Heir of Husb. or
Wife sho'd have the Land Adj. for Heir of Wife And that Rem
to Husb. in Fee was void For taking it as a Rem*r at Com. Law
there was no particular Est. to support it. None was expr. & if
any was to be impl'd it ought to be in the Wife being her Inherit-
ance And then she dying before the Issue the particular Est.
determined before the Rem'r vested And taking it as a springing
executory Use it was void because after dying with*t Issue w'ch
the Law will not expect This acc*o to Salk. but Show, as to the
last Point is that the Intent was to raise an Est ex prcesenti
And therefore it ought to be constr executory or contingent
w'ch I take to be the better Reason for I apprehend an Use
may be limited after a dying with't Issue. Vid Coltman &
Senhouse ante Sed 9.
Ans. This being by Fine & so a Conv. at Com. Law can be
nothing to the present question.
Oct. 1739. Judgm't for Pit. by the Opin. of
Randolph
for Deft.
Custis
Lightfoot
Grymes
Byrd
Carter
Commissary & the
Robinson
Governor
Diggs
[307] Oldum a Allerton & Pope.
In Trespass for taking away a Slave upon not guilty pleaded
the Jury find a special Verdict ** That Deft. Allerton being a
Justice of Westm'd made a warrant to be Constable to bring
before him (not saying or any other Justice as is usual) the Pit.
& one Tebbs Inspectors at Yeocomico to answer the Complaint
of los. Gardner for taking divers Draughts out of sev'l Hhds
of Tob*o contrary to Act of Ass. in that Case made That the
Constable appointed a Day for hearing & sum*d 5 Witnesses four
of w*ch with Tebbs appeared but Pit. did not And Oldum saying
he would not come Deft, proceeded to hear Complt in his Absence
& gave Judg*t in these Words " It being plainly proved to me
that Mr. Sam. Oldum one of the Insp'rs at Yeocomico took 5
Samples or Drts. out of 5 Hhds of W'm Tyneys Tob*o this year
and likewise 2 Drts out of 2 Hhds of Mr. Opies & 2 Drts out of
M r^Tf^ • I.-: r:^ "r*^ »^ CI * ^^ .^-Tct. .c>* -i.- 1 ^'J^.
A^/- ^«A -^— ST^ ^ *--Tr »- -r^ * TT -*- A w *--^*.- * ^^-. -^ •...i^^ A. * ^^«. tfX>?W^ ^Wft^ »-^w j^Vjfc.-
Tr.*: ^j-i^^r.-r.^ is 7»'h-r:hrr the Takmz ^v \lr:t:e c: this jTidg't &
Ez'.r. r.-e a i"x.*i Tus'.if.:^.*.::-:: Ar-i I cinceive n:t.
T'. cerr.-^r-^trate this r: will le nev-rs^ary in the £rst Place to
v-'r ''.'.7/ far a Ju'Ii'e & h^'w far an C*ri.c^r may be liable to an
A^".:^n for Tr-ir.zs cine by thrtn j^r.j.vy:.ii^ such
!. A<5 to the Oricer the Rule c: Law is " O^r /tt55M jiidicis
•' alyruii fecerit r^yn videtur dele mcl: y:iss€ quid f\:rere necesse
•' e:t ** V/hat is done by the Command of a Judge shall not be
tak'rn to be done T^-ith an ill Intent or maliciouslv because there
i5i a Necessity of obe\-ing But then this Rule must be understood
y^'T.^f: the Judge has a proper Juris-iicticn for it is another Rule
in Law ** Jiidkium non a sua Judice JJ^f<m nu.V:si5 rsl m<?»m:/i/'
A Judgm't given by a Judge who has not Jurisd. is of no Force
This Point was long ago settled in the Case of the Marshalsea
10 Co. 00. In Tresp. & false Imprisonment the Deft, justified
by an Exon from the Marshalsea in Case upon Ass. 2 q's were
made 1. Whether the Marshalsea had Jurisd. of such Actions
If not Then 2. Whether the Deft. [30S] having the Warr't of that
Court sho'd be jjunished for false imprisonment. It was resolved
that the Marsk. had not Jurisd. & that theref. an Action lay ag't
the Officer notwithst. the Warr't of the Co*rt for all -w^s Coram
mm Jiulice & Officers are to know their Duty at their Peril
The Diff. there taken & w'ch has been allowed ever since is
W'hffre a Co'rt has Jurisd. & proceeds erroneously & where they
have no Jurisd. at alh In the first Case the Officers & Ministers
BARRADALL'S REPORTS B333
are not liable to Action for they are obliged to obey & are not
to exam, whether the Process be regular or not But in the latter
Case where the Co'rt has not Jurisd. they cannot be punished
for disobeying The necesse parere does not hold And theref.
if they execute Process in such Case they must ans'r it at their
Peril.
Upon this Diff. all the Cases since have turn'd as appears in
Seaborn & Savaker 2 Ro. Ab. 560. Nichols a Walker Cro. Car.
394. Dye & Olive Mar. 117. Webb & Batchelor 1 Vent. 273.
Lucking & Denning 1 Sal. 201, 202. & other Cases that will be
mentioned presently
This being the settled Law with resp. to Officers Let us now
see how it stands in the Case of Judges And upon the Reason
of the Thing one might venture to say that the Judge ought not
to be in a better Cond. than the Officer Nor indeed is he for a
Judge shall sometimes be liable for exceeding his Authority
when the Officer who executes his Process shall be excused
It must be allowed to be a settled Rule that a Judge shall
not be liable to an Action for a Mistake in his Judg*t Nor will
the Law allow it to be supposed that a Judge is influenced by
Malice Partiality or Revenge And therefore no Action of Con-
spiracy will lie ag't him for anything done by him as Judge
12 Co. 63. Floyd a Barker Nor an Action of false Imprisonm't
tho the Imprisonm't be illegal as app'rs in Bushels Case 1 Mod.
119. Such an Action ag't Lord Mayor Recorder &c. of London
for committing a Juryman for giving a Verd*t ag't Evidence Hale
declared his Opin. that the Action wo'd not lie So Hammond a
Howell &c. 1 Mod. 124. A like Case The Co'rt declared Action
wo'd not lie for wrongful Imprisonm't any more than erroneous
Judg't
All this I agree to be true where the Judge has Jurisd. of the
subject Matter But if a Judge will usurp a Jurisd. that he has
not & under Col'r of that imprison or do any other Act that affects
the Liberty or Property of the Subject The Party grieved may
certainly have an Action ag't him for tho' he acts as Judge he
really is not so The Proceeding is Coram non Judice as the
Books phrase it Hard. 483. Cro. Car. 394.
This is so plain in the Reason of Things it seems not to want
Authority to support it I will however for the Satisfaction of
the Court mention a Case or two presently
[309] But first I would observe that wherever an Officer is
N
h>^A v:rg:?:ia colonial izcisions
I* • • • • WW - • - ^-^ ^ £ T • "
^.h'^.r riiture &: Ccn?:::i:t:':n limitei A: circrirr.^^cribed Seme to
P'aie as CVjrts of Corporati^ti & Justices c: Peace Seme t3
the Pv.r. as the Marshalsea ar.cientlv One c: the Parties at least
v.a- to lye "Vir.;^^ within the Ver^e 10 Rep. 75. 77. And sctne as
to the v-hject Matter as Comm'r c: Excise of Sewers &c. Har-i.
4v>, To w'ch I nta}' aid Justices of Peace in Cases where they
have not an ordinary- &: g*^ Jurisi. but only a particular P-: wer
or Author. tv eiven to them bv sonte Act of Parliament Everv: ne
of these limited Jurisd. must take Care to keep within their own
Bounds & not exceed their Power If thev do both the Judees &:
those who act under their Authoritv are liable to the Action
of the Partv erieved as m.av be seen from the foil Cases
Nichols & Walker ^c. Cro. Car. 394. 2 Ro. Ab. 5»iU. Trespass
a an Of^.ctT for levying a Poors Rate by Virtue of a Justices
W'arr't Wch Rate was not legaUy assessed Judg't for Pit. for
tho* Justices had Power to grant a Warr't for le\'\"ing a Pc-i^rs
Rate Yet their Power was limited onlv to Rates well assessed
Tfsrry & Huntington Hard. 4^0. Trover for Goods lev'd by
Wan* from Com'rs of Excise who upon the Act of 12. Car. 2. 23.
had adj'd low Wines to be strong Waters perfectly made This
Act lays a Duty upon sev'l Liquors & among others upon strong
Waters perfectly made The Makers & Retailers are to account
for this Duty as the Act directs under a Penalty And Offences
ag't the Act are determinable before the Comm'rs It was arg'd
for the Deft, that the CommVs acted as Judges & it was only
a Mistake in their Judg't But it was held by the Co*rt that tho'
they acted as Judges Yet they had only a Umited Jiuisd. w'ch
they had exceeded That Low Wines were another Species than
strong Waters upon w'ch the Duty was laid & so gave Judg't
for the Pit. Those who argued for the Def. agreed that if the
CommVs had not Jurisd. the Action lay And it was ag*rd on
both Sides that in such Case both the Judges & Officers would be
Tresyjassors This Case being very full to all the Points of my
Argum't I will beg Leave to read it
In the Case of Gwyn & Poole Nel. Lut. 293. It is taken as a
BARRADALL'S REPORTS B335
Rule by Powell Justice in his Arg't That all inferior Judges &
Officers where they proceed in a Cause that may reasonably
appear not to be within their Jurisd. are liable to Actions Other-
wise where it cannot so appear. Upon this Reason the Judg't
in that Case turned It was an Action ag't Judge Officer & Pit.
in inferior Court for arresting in a Cause arising extra Jurisd.
And it was held that as it could not appear but by Plea where
the Cause of Action arose the Judge & Officer were not liable
But it is admitted that if a Plea to the Jurisd. had been offered
& refused [310] Or if it had been reced & the Co'rt afterwards
proceeded an Action wo'd lie
The same Point is admitted in Crump & Halford 4 Mod. 349.
Skin. 445. And in this last Case there is an Instance mentioned
where the Judge wo'd be liable tho' the Officer wo'd be excused
as if a Justice sho'd issue a Warr to apprehend a Felon with't
Oath made of a Felony committed the Officer would be excused
for executing it but the Just wo'd be a Trespassor The Reason
of w'ch is plain y't the Just had a Power to issue a Warr. for
apprehending a Felon & the Officer was not to exam wheth'r
Oath was made or not The Just, had Jurisd. & he was bound to
obey
These Cases I think fully prove that an Action will lie ag't
inferior Judges for exceeding their Jurisd. as well as ag't their
Officers And this is further proved by the Stat. West. 1, c. 35.
w'ch prohibits inferior Co'rts to proceed in Contracts &c. out
of their Jurisd. & gives double Dam's to the Party grieved
Which Dam's can be only recov'd by Action There is a Writ
in the Reg'r 98. under the Title Trespass grounded on this Act.
Vid. 2. Inst. 230.
Besides w'ch we have comon Experience of Actions a Justices
for whipping putting in Stocks &c. where they have exceeded
the Power the Law has given them Some of w'ch I have known
in this Court
I shall then take it for granted that the Judge as well as the
Officer is liable to an Action where he exceeds his Jurisd. And
now it rem's to shew that the Deft. Allerton in the Judgm't &
Exon he awarded ag't the Pit. hath exceeded the Power & Au-
thority given to him by the Law
I will first beg Leave to premise that a Judge may exceed his
Jurisd. 2 Ways 1. Where he has no kind of Jurisd. at all of the
subject Matter 2. Where he has e Jurisd. but that Jurisd. is
.*
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BARRADALL'S REPORTS B337
for the more explicit Direction of the Insp'r in his Behavior
but was never intended so indispensible a Duty as that the bare
Omission of that sho'd subject the Insp'r to the Penalty for
Suppose the Dra't sho'd happen to be bruised or broken in the
drawing or by any Accident after bef . it was put in again Or
suppose the Owner sho'd desire it not to be put in w'ch I am
told is often the Case Shall the Insp'r in either Case be liable to
the Penalty It will not surely be pretended
To constitute this Offence then I conceive these 3 Things are
requisite 1. That the Sample be taken out of a Crop Hhd.. So
are the Words of the Act 2. That the Insp'r take the Tob'o to
his own Use or otherwise dispose of it ag't the Will or with't
the Knowledge of the Owner For surely the Owner may give
it up if he pleases And 3. that the Tob. be fit to pass This I
take to be the plain & obvious Meaning of the Act And as the
Penalty is inflicted only for taking away Dra'ts contrary to the
Directions of the Act (for so are the express Words) Unless the
Dr'ts were taken under the Circumstances just now [312] de-
scribed the Insp'rs ought not to have been condemn'd to the
Penalty as I humbly conceive
The next Thing then to be considered is Whether the Justice
has convicted the Pit. of such an Offence as is described in the
Act for if he has convicted us of and other Offence I presume
it will not be sayed that this Act can be any Justifica.
I will take the Justices own Words for what he says appeared
& was proved to him ** It being plainly proved to me that S. O.
** took 5 samples or Dra'ts out of 5 Hhds of W'm Tyneys Tob.
** &c. And did not return the s'd Dra'ts into their resp. Hhds."
This is all the Just, says was proved to him ** that he took the
** Dra'ts out & did not return them again." As to taking the
Dra'ts out that he was obliged to do The not returning them
then is all that is laid to his Charge as criminal
Now if this be not the Offence intended by this Act If under
some Circumstances the Insp'r might very innocently act in this
manner Then it will foil, that the Just, has exceeded the Power
& Authority given him by this Act w'ch is only to convict of the
particular Offence there described And so the Justice & his
Officer are both Trespassors
And it is plain I think that what we are conv. of is not an
Offence within the Act or indeed any Offence at all It must be
own'd that und'r many Circumstances the Insp'r is not obliged
B3:iS VIRGINIA COLONIAL DECISIONS
to return the Dr't into the Hhd as 1. if it was not Crop Tob. 2.
if it was not fit to pass 3. if the Own'r sho'd desire him not Ani
either of these might be the Case for anything that app'rs to the
contrary' upon the Judg't It is not saved they were Crop Hhds
out of w'ch the Dra'ts were taken Neither is it sayed that the
Tob'o was fit to pass Or Y't the Insp'r took the Tob. to his
own Use or otherwise disposed of it with't the Knowledge or
ag't the Will of the Owner Nay it is not so much as sayed that
what he had done was contrary to the Directions of the Ac:
So that there is not Room to suppose any of these Facts And
there is much less Reason to suppose the last of them because
it is not the Owners that complain but a busy Fellow that tum'd
Informer in hopes to get the Penalty w'ch indeed the Just, has
given to him apparently ag't Law as I shall shew presently
But I apprehend further that no Sup|>ositions are to be made
of Things that do not appear There is a Record w'ch is relied
on as a Justif. And yo'r Hon'rs are to determine from w't app'rs
upon the Rec. Wheth'r it be a good Justif. or not The Rule of
Law is ** Inter non existentia et non app. eadem est ratio.'' As no
Averm't wiil lie ag't y'e Rec. And we must not be admitted
to say that anything in it is not true So neither must they be
allowed to aver anything that does not app'r upon the face of
it
And since it does not app. as I apprehend y't the Insp. was
guilty of the Offence mentioned or had done any thing to subject
[313] him to the Penalty therein mentioned the Justice had on
Power or Authority to give Judg't ag't him
The Case of Terry & Huntington supra is exactly the same
with this The Comm'rs of Excise are made Judges of an Offence
ag't an Act of Parl't They convict a Man of an Offence w'ch
in their Opin. was within the Stat. An Action is brought ag't
the Officer who executed their Precept The Judges are of Opin.
that the Matter for w'ch they had convicted the Pit. was not
an Offence within the Act And that theref. the Com'rs had ex-
ceeded their Jurisd. & Power w'ch was lim to the Off's in the
Act And it was held that both they & their Officers were liable
to an Action So here if the Just, has con v. us of an Off, not
within the Act His thinking it to be within the Act will not excuse
either him or his Officer As the Comm'rs of Excise exceeded
their Power in judging Low Wines to be strong Waters perfectly
made So the Justice here has exceeded his Jurisd. in judging
BARRADALL'S REPORTS B339
the not ret. a Sample into the Hhd whence it was taken to be
the Offence for w'ch the Penalty is inflicted by this Act of Ass.
To make this more plain Supp'o the Justice had given Judg*t
for 40 S. for every Off. instead of 20. I presume it will be granted
we might have an Action in that Case And if we might in any
Case where the Justice exceeded or did not pursue the Power
given him Surely we are intitled to it when he conv. and con-
demns us to the Penalty with't being guilty of the offence.
It would have made a mighty Diff in the Case if the Just, had
been only mistaken in his Judg't of the Fact that is if upon the
Evid. he had been of Opin. we were guilty tho' we were not not
so In that Case we must have been with't Remedy Because
the Law has made him Judge of the Fact & it is within the Power
& Authority given to him But in this Case the Just, has taken
upon him to make that Off. ag't the Act w*ch I conceive is not
so And so has plainly exceeded his Power w*ch is only to conv.
of the particular Offence therein described
If this Point can want any further Enforcing I desire it may
be considered how dangerous it must be to the Liberty & Fortunes
of the Subject to vest a single Just, with so much Power as must
'be the Conseq. of the Doctrine on the other Side If he may
not only conv. of the Off. in the Act But also make that an
Offence w'ch the Law has not made so who can be safe in their
Psons or Estates This would be transferring the legislative
Power to him & open a Door to all the Violence & Oppession
imaginable Justices may be governed & blinded by their Passions
I wish there was not something of that in this Case But however
that be it must be allowed to be too dangerous a Power to be
lodged in a single Hand And therefore the Laws have very
wisely provided this Fence of an Action where the Just, goes
beyond the Power & Authority given him
But the Just, has not only exceeded his Power in making
that an Off. w'ch the Law has not made so but he has likewise
done so in giving a Judg't not warr. by the Law And that in sev'l
Instances 1. As to one of the Offences he has split the Penalty
betw. y'e 2. Insp'rs & gave Judg't for 10 s. [314] only a the Pit.
2. He has given Costs tho' none are given by the Act And so
has subjected the Pit. to a greater Penalty than the Law has
inflicted It will be no Ans'r to say the Costs are but small
The Obj. is he had no Power to award any Costs Ergo in so doing
exceeded his Jurisd. By the same Rule that he co'd award
B:^0 VIRGINIA COLONIAL DECISIONS
oO lb. T:b. he mi^h: have aTrariel 30 £. In Crump & Halfords
Casc^ jn.v it serins aimitied by the Argmn't fr Deft, that Costs if
had been ^ven where thev ou^ht not the Action wo*d lie Thev
labour to prove the Act intenied Costs
But the ET.ost weighty Obj. of all is 3. That he has given the
Penalty to the Infcrmer The Penalty is not appropriated by
the Act In wch Case it is a known Rule that it goes to the King
II Co. t>8. a. Sc here his Ma tie is not only defrauded but the
Subitct put in a wcrse State than the Act intended He is to
lie at the Mercy of the Intcrtner instead of the King If the
Penalty had been ad;*d to the King as it ought the Pit. by an
Application might have get it remitted And I dare believe wo'd
have met with so much Fav'r under the Circumstances of this
Case.
This is exceeding [<:Vj Pcwt- r \^-ith a witness It is not at at
unlikely the Legislature designed in not appropriating the Penalty
to leave Room tor an Arr Meat ion to the Crown where a Justice
was too severe or partial It might be thought a proper Security
ag't arbitrary- & \-ioIent Proceedings But the Justice here was
resolved to stop the Fountain of the Kings Lenity & effectually
to ruin the Pit. \i he could If this is allowed Hard will be the
Fate of every poor Insp'r who happens to be obnoxious to a
Count r\' Justice who Ts-ill undertake the Exon of an Office that
may put it n the Power of his Enemy to ruin & destroy him even
tho* he is ever so innocent
A 4. Obj. to the Judg't is its being for £.\\, . 10. — w'ch I
think is more than a single Justice can give Judg't for Without
Doubt he might have given Judg't for 12 different Offences or
200 but then as the Offences must be sev'l so ought the Judg^ts
The ordinary Power of a Justice in Civil Cases is limited to 20 s.
Now shod a Just, in a Civil Case under Pretence that the Pit.
had sev'l Demands ag't the Deft, give Judg't for more than
20 s. I daresay he wo'd be thought to exceed his Authority tho'
perhaps he might ver>' well have given separate Judg'ts as
Supp'o 20 s. to be due by Obi. & 20 s. by Acco*t he might give
sev'l Judg'ts for these Sums but not one Judg't for both This
indeed may be sayed to be but an Informality And if there was
nothing more in the Case I sho'd not not much insist upon it
But it is really attended with a very bad & dangerous Con-
sequence For if this Penalty had been given to the King as it
ought by crowding these Offences into one Judg't & thereby
BARRADALL'S REPORTS B341
making the whole Penalty exceed 10;£". The Gov'r could not as
I conceive have extended the Kings Fav'r tho' the Case had been
ever so deserving of it This is surely worthy Cons. Suppose
a Justice should arbitrarily & unjustly give Judg't ag't a Man
for [315] 500 Breaches of this or any other Law & put them
in one Judg't If the Justice took Care to pursue the Law in giving
his Judg't the Party must be with't any kind of Remedy tho*
the Partiality & Injustice were ever so notorious
Let it be considered w*t a dangerous Power this would be in
the Hands of a single Pson subject to no Controul Human Nature
is too depraved to depend altog'r upon the Virtue & Integrity
of the Judge Power is apt to intoxicate & spoil the best Tempers
And therefore it is in a Mann'r absolutely necessary that the
Fences ag't arbitrary power sho'd be kept up I dare say it was
never the Intention of the Law makers when they inflicted this
Penalty to put it in the Power of a single Justice to ruin any
Insp'r if he pleased w'ch will be the Consequence if he may crowd
as many Offences as he pleases into one Judg't as I have en-
deavoured to demonstrate
It will be arg'd I suppose that it is very hard upon Justices
who serve in their Office with't any Reward to be subjected to
Actions if they happen to be mistaken And this is a very
plausible way of Talking
In Ans'r to it I wo'd desire to be understood that I make a
great Diff. betw. Things done by a Just, by Virtue of his gen'l
Authority and where they are done by Virtue of a particular
limited Power given to him by a positive & written Law In the first
Case any little Slip or Mistake in Point cf Formality especially
is never regarded nor can he be punished for it But where a
positive written Law has plainly pointed out his Power & Author-
ity There if he does not strictly pursue the Power given him
he must ans'r for it For as I have already observed Every lim
Author, implies a Neg'a viz that they shall proceed acc'o to that
Power & not otherwise And there is no great Hardship upon the
Just, in this last Case He may act very safely if he foil, the
Directions of the Law And it may very reasonably be deemed
rather a Fault in the Will than the Understanding if he does not
Whereas in Matters where he has a gen'l undefined Authority
it is not always so easie for him to know precisely his Duty &
Power And theref. it is more reasonable to make some Allow-
ances Tho' even in those Cases if he exceeds his Power in any
> —
Axxjrr^ in l-i"«" .*-n'i T-iri:i;7 "Liitr^ :ar:"rt:r ':e i 4r^j.^Tr In«:-:n-r
'';in ^', i'i"f^r & l.iinTr^ 'ij'Ijl:* T^jiirr^ ns r nr-ir i A:i"Ji-:n':T
t'.«'. ^ ^ .. " . - • ^^ ___ ^f •___
**" ^ "^ ' "~ * — — - — ^^ _ — — « « ^ ^
* * ^ - j<^ » ^ » _ — ^ - ■» v^ - » ^^
rr.^^Lh '''-rrrr. ^rr-ar: r'.r r: m L-sm 5 is zLi-ftri "rbey z^n-^ht
f^ '..'.', ,. >.— t &« a.--. « *. 'Z -• -- 2 «&.-.- 1 C * "TT — _ ... ^ ^. TT^JTrt •^-* LrL.«.»
*/* *j;x^fz y*Av^ r,: ^ ::cint c -• seme Cirrmnstances arc^iring in
I , Tr.f: V/arr. is 5:^«ecial to ai.z'r bercr^ tbe I>ef. onlv & not anv
o*h'rr yy',\v,ft as the u=-al Form is 2. The Matter was heard in the
\'\\\, k\/'/^jjt It at,t,'rs indeed the Just, was tcid he wo'd not
fjAr,*', b-Jt vjrelv in a flatter of this Moment & Value one Default
rr.:;^^t have been passed over & another Day appointed And
tf.en if the Pit. had failed the Just, cod not have been blamed
And there was the more Reason in this Case as the Pit. was an
In-.j/r & n.:j.^ht be under a necessity of attending the Warehouse
jtj M at that Time or be subject to a Penalty for not being
th^re
I must submit Whether these Circumstances do not cany an
A[ipearance of something like Heat & Passion to say no worse
At least we may suppose the Jury thought so from the Damages
they have ;^iven
I only mention this to oVjviate the Stress that may be laid on
the Ilanlship of the Case It can never be thought a Hardship
if the Just, was influenced by Passion or Resentm't And tho* the
Law will nf;t allow such a Thing to be presumed from the mani-
fcKt Inconv. that wo'd foil. Yet when Facts are found by a Jury
BARRADALL'S REPORTS B343
that plainly prove such a Disposition I don't see how a Co'rt can
help judging so
But however that be if the Just, has acted illegally if under
CoFr of his Authority the Property of the Pit. has been invaded
& he subjected to great Loss & Dam apparently ag*t Law I
must submit whether the Loss & Injury to him be not more
worthy Cons, than any compassionate Regard to the Just, sup-
posing him to be ever so innocent
For the Deft, was cited Greenvelt a Burwell 1 Sal. 396. w'ch
Case proves nothing but w't is admitted in the Argum't above
& rather strengthens than invalidates it
Yet Judgment was given for the Deft. October 1739. by a great
Majority of the Court
To the Cases above cited for the Pit. may be added Rex vs
Chandler 1 Sal. 378. A Summary Conviction ought to be con-
strued strictly so as to shew the Fact an Offence within the Act
because the Subject is deprived of a Trial per Pares.
[317] APRIL COURT MDCCXLI
Dudley vs Perrin & al. Fr Deft.
In Ejectm't upon a special Verdict the Case was Eliz Ransone
seised in Fee tail of the Premes in Question marr'd Rob't Dudley
They had Issue the Lessor their Son & Heir born in 1692 —
Dudley died in OctV 1701 — In Sept. 1710. Eliz. marr'd one
Elliot who died in Nov. 1716 — She died in Dec. 1718 — In Oct.
1726. the Lessor bro't an Ejectm't In w*ch Suit Judgm*t was
given ag't him in Oct. 1729. And this Suit was brought in Apr.
1739.
Dudley his Wife by Lease & Rel. both dated 16. Oct. 1694
ackn'd but Feme not exam*d sell & convey for val. Cons, to
Jas. Ransone In the Deed of Rel. is this Clause ** And lastly
** the s'd R. D. & E. his Wife do by these Presents firmly oblige
" themselves their Heirs Ex'rs & Adm'rs the s*d Land Tenem'ts
" Hered'ts with all & singular its Rights Members Jurisdictions
** & appert's & every Part & Parcel thereof as is bef. expressed
** unto the s'd Jas. Ransone his Heirs & Ass. to warrant & ever
defend "
Ja's Ransone by his Will devised to his Sons Geo. Robert &
Peter in Fee And they for val. Cons, sell & convey to Tho. Booth
who by his Will devises to his Ex'rs (the Defts.) to be sold
I'tt Z,'-""!: i: i*.»^ 'zlxt'^ ''.^--'^ in.'^jz 'i^~~± "lesi. zi. ir
_u
i- - -
'^— -.^^» <b>— _ A
1
t',f
'/-•-■ t-" ' ^ • - *.
r^ :r On. :7:'> An
' - — -- p-^^:
• ^ _•". -_ __
*z7. 'i rr.'i-* :>*: c^r-fii^rei rr-eerlv as thr Act c: ibe Eusr'i Ani
ai v,:':?- a* the C.m. Law Tr.-^i Lave niaie a Disozntinuarce &
tak'rr. avrav the 7r::e> Eintrv htit that is saved r v the o2 K. S. 2S,
V> her & h'rr Heir? -K-hs hv that Stat, niav enter after the Hus-
A Pf^'ht of Entr-.' then in this Case accraed to the LesS'Drs
y^Ar/r -JT.on the Death of her Hushand Duilev in 1701. At this
T:rr,e there was an Act of Ass. s;:hsi5tin2 made in 1662 wherebv
/> y*:HTS Pohsion was a Bar
[-^iS] But that Act being repd by the 9. Ann. I shall cot
preVrnd to sav the Court can take anv Notice of it
Jn Oct. 1710. the Act of 9. Ann. was made w'ch enacts to this
Pijrpoh/5 ** that no pson or psons that now hath or have or w'ch
'* hereafter may have any Right or Title of Entry into any Lands
*' &c. shall at any Time hereafter make any Entry but within
** 20 Vears next after his or their Title hath heretofore descended
or ar;crued or hereafter shall descend or accrue And in Default
thereof they & their Heirs shall be utterly excluded & disabled
:rom such Entry Provided that if any Person that hath or
Bhall have such Right or Title of Entry be or shall be at the
* Time of such Entry first accrued within Age Feme Covert &c.
tt
ti
H
*t
BARRADALL'S REPORTS B345
" such Person may notwithst'a the 20 years are exp. make his
*' Entry so as such Person within ten Years next after the
" Disability removed take Benefit of & sue for the same & at no
** Time after s'd ten Years "
This Act repealing that of 1662 revived the Right of Entry
of the Lessors Mother w*ch was barr'd by the old Act But then
this Act has a Retrospect with Regard to Titles accrued before
the making of it Psons then having a Right must enter within
20 Years from the Time his Right first accrued The Words of
the Act are express & plain to this Purpose.
Now the Pson having a Right of Entry in this Case when the
Act was made was the Lessors Mother whose Right first accrued
upon the Death of her Husband Dudley in 1701. as has been
observed
By the Enacting Part of this Act She & her Heirs ought to have
entred within 20 Years from the Time her Right first accrued
Now no Ej. was bro*t till 1726. But luckily for the Lessor his
Mother was marr'd just a Month before the Act was made And
so being under Coverture by the Proviso or Saving Clause She &
her Heirs had ten years to enter from her Discoverture w*ch
happened in Nov*r 1716. And the Lessor bro*t the Ej. in Oct.
1726. just a Month within Time If he had stayed a Month
longer he wo'd have been barr'd of that Ejectm*t
Now he brings another Ej. at the Distance of 12 years & K from
the first 9K years after Judgm't was given ag*t him & more than
12 years after the Time allowed by the Act for him to make his
Entry is exp.
And the Question is Whether the bringing of that Ej. in 1726
has taken the Case out of the Act of Lim for if it has not the Time
allowed by that Act is elapsed & the Lessor is clearly barr'd
I shall be glad to hear for I must own I am at a Loss to guess
what Reasons can be offered for the Affirmative Sure I am there
is no Authority but I think there is an Authority in Point on
[319] the other Side of the Question if there was not I take it to
be clear upon the Words of the Act of Ass. Upon the Reason
of the Thing & the manifest Inconvenience that would follow if
the Law was otherwise that the bringing of an E j . is not making
an Entry so as to take a Case out of the Act of Lim.
1. As to Authority By the 4. H. 7. Fines levied as there men-
tioned are declared to conclude both Strangers & Privies but
there is a Saving to all psons other than the parties ** So that
B346 VIRGIXIA COLONIAL DECISIONS
" they pursue their Title Claim or Int by Way of Action or lawful
'* Entry w'thin five years "
One having a Title bro't an Ej. within 5 years after his Title
accrued And the Question was Whether this was an Entry or
Claim so as to avoid the Bar of the Fine And resolved that it
was not And that the Confession of Lease Entry & Ouster sho'd
not prejudice the Deft. 1 Vent. 42. Clark a Phillips.
By our Act psons must make their Entry within 20 years after
their Title accrues or in Default thereof to be barr'd But there
is a Saving to psons under Incapacity who may enter after the
20 Years '* So as such pson within ten Years after the Incapacity
** removed take Benefit of & sue for the same."
The Words of our Act & those of the Stat, are the same in
Substance And if the bringing an Ej. is not making an Entry
in the one Case Neither can it in the other The Cases are
parrallel both in Law & Reason.
As to the Confession of Lease Entry &c. that is a Rule a Deft.
is forced into by the Court And it would be very strange if that
sho'd turn to his Prejudice But in Reality it is not the Entry
of the Lessor that is confessed but of the nominal Pit. The Rule
only confesses that a Lease was made by the Lessor that the
Lessee (the nominal Pit.) entered & that the Deft, ousted him
Certainly then where an Entry is necessary to make a Title this
Rule can signfy nothing 1 Sal. 259. 1 Vent. 382. Sed vid. 248.
Hales Opin. con. Court takes Notice that Ej. is fictitious &
Entry not real 1 Sal. 245.
2. Let us consider this Point upon the Words of the Act of
Ass. All psons must enter within 20 Years after their Title first
accrued " And in Default thereof shall be barr'd '* This is the
Enacting Part The Saving Clause is " that Psons under In-
capacity may enter after the 20 Years So as it be within ten
** Years after the Incapacity removed And at no Time after
These Words ** At no Time after *' are very strong & seem
calculated to exclude Entrys under any Pretence after the ten
Years If the Makers of the Act intended to except this Case
of an Ej. bro't within Time why did they not mention it The
Words of the Act [320] are general Et ubi lex non distinguii nee
nos distinguimus say the Judges The Words are very express
that psons shall not shall not enter after ten Years How then
can the Co'rt adj. that the Lessor here may enter after more
than 20.
BARRADALL'S REPORTS B347
Did the Lessor by his Ej. in 1726. acquire a new ofa different
Right of Entry from what he had before Surely it can't be
pretended And if not if he has only the same Right of Entry
now he had then the Act is a clear Bar to that Right
But 3. The Reason of the Thing & the great Inconveniences
that wo*d ensue if the Law was otherwise sufficiently prove
the Law to be as I contend viz. that the Lessor is barr*d by the
Act of Limitation notwithsta. his Ej. in 1726.
The Acts of Lim were made for the Security of honest Pur-
chasors Upon this Acco't they always meet with a favourable
& liberal Constr. for the Benefit of Purchasors The Mischief
intended to be remedied was the setting up of stale Titles There-
fore says the Act no one shall be allowed to make an Entry after
such a Time
But how will this Mischief be remedied if psons are allowed to
enter after the Time limited by the Act Will not Purchasors be
often deceived if such a Practise prevails And so the princ.
Design & Intention of the Act defeated Pchasors often rely on
these Acts of Lim as their greatest Security If they are suffered
to be evaded under any Pretence no Purchasor can be safe
But further in this Case I would ask Has the Lessor by his Ej.
in 1726 acquired a Right of suing again at any Distance of Time.
If not when is the Act of Lim to bar him When is it to begin to
run The Act points out no other Periods but from the first
accruing of the Right & the Removal of the Incapacity The
Time is long since elapsed from those Periods No new Right
of Entry has since accrued to the Lessor
It is not plain from hence if we go beyond the Time limited by
the Act we shall neither know where to begin nor where to stop
By the same Rule & Reason that the Lessor may maintain this
Ej. in Case he miscarries he may bring another at the Distance of
another 12 or even 20 Years & so a fourth in infinitum At this
Rate the longest possession will signifie nothing & the Acts
of Lim are made in vain
The Inconvenience then of departing from the Act is manifest
Titles may be set up under the same Pretence as in this Case at
any Distance of Time Suits multiplied without End Honest
Purchasors deceived The longest Possion of no Effect And the
Acts of Lim utterly defeated
[321] Argument ab inconvenienti very forcible
mm^ ^ m- ^
4 .r^
» ^\*
^ «4
■^
It i* r^^r'.r-ar.je t-: think if tbr Lat rzakers ba.i rr^tcniei tc
a..'>-x- tr-r: r.nr.%-ir.^ t: a sectnt E;. tr A::ti:n ::r Lanis tz^ey iri- i
Makr^Ts r,: the Stat, b-er^ufe th-ev ar^ c»:th in the sair.e An
Cnr? ar*: tiro dir-erer.t Aits hut i:t:'i almist Terbatirzi frr-tii
t?.-^ htat.
There brin;^ no Pr':'--i5«o as to the Lanis is not only a string
Ar^-um't but a kind of Pr>:f that they iii net intend to alli'-ar
of a second Stiit or Action in tr^t Case
But if there was snch a Proviso it we'd not helD the Less-ir
for it extends or^y to Cases where the Pits. Right is a^Srmed by
Verdict & then he must sue within a Year Here Judgm't was
ag't the Pit & he has not sued again till 9-^ Years after
This Proviso is a Proof the Law Makers did not intend a 2d
Action shod be brought after the first except in the Cases ex-
c/^pted
Taking this Case then in any View I cannot see what Founda-
tion there is for saying the Pit. may maintain the present Ej.
because he bro't another formerly within Time
The Act of Ass. gives no such Right On the contrary the Words
are express that no Entry shall be made after the Time there
[incited No Proviso within the Equity or Intendment of w'ch
L/;ss^jr can bring himself but rather a strong Presumption that
no such Thing was intended Manifest Inconv's if the Law was
so & last by a Case in Point that bringing an Ejectm't is not
making an Entry
Obj. But these Statutes are sometimes taken by Eq. and
under particular Circumstances it has been allowed to bring
personal Actions at least after the Time where an Action has
bef;n before comenced within Time
Ans. I agree such 2d Action has been sometimes allowed
in personal Actions There is not the same Inconv. with Re-
spect to Purchasors But in those Actions it has been only
allowed in Case of the Pits. Death And even there the ExV
or Adm'r must make a recent Prosecution And w't shall be
BARRADALL^S REPORTS B349
deemed so the Judges are to determine upon the Circumstances
of the Case In gen*l the Year mentioned in the Proviso just
now taken Notice of his been thought a good Direction to the
Judges And therefore where an Ex*r lay by four Years it was
adj'd not to be a recent Prosecution fr Raymond & tot* Cur'
Wilcox a Huggins FitzG. 170, 289.
The Defts. Possion in this Case has been 46 years There
have been two Purchases & two Devises The Defts. Testor
was a Purchasor for a val. Cons. The Acts of Lim were made in
fav'r of Purchasors And we rely upon them to protect & secure
us
[322] If Lessor not barr'd by Act of Limitation Then
2 Quest is Whether the Warr of his Fa'r in the Deed of Conv.
to Ranson is a Bar to him And this I shall consider 1. Without
Regard to the Assets descended to him & 2. With Regard to
those Assets.
The Case as to this Point is shortly this A Woman Tent, in
tail marries her Husband aliens with Warr & leaves Assets in
Fee simp, to a certain Value w'ch with the Warr descend upon
the Issue in tail
The Subj. of Warr being pretty uncommon in this Court I
hope I may be excused if I enlarge a little upon it
A Warr is a Cov*t real annexed to Land whereby a Man & his
Heirs are bound to warrant the same 1 Inst. 365. a.
Of these Warr there are 3 Kinds lineal collateral & such as
comence by Disseisin Lit. s. 679.
A Warr is sayed to be lineal or collat not in Resp. of the Warr
but of the Title of the Land Thus a Warr descending from Fa'r
to Son may be collat. tho' the Descent of the Warr is with't
all Quest lineal And that will app'r to be the Case here.
A lineal Warr then may be thus defined Where the Lands to
w'ch the Warr is annexed wo'd have descended to the Heir
from the Ancestor making the Warr if that Warr had not inter-
vened & prevented it
And so ex opposito a collat Warr is Where the Lands co*d not
desc. from the Ancestor making the Warr Nor the Heir by any
Possibility derive a Title under him Lit. s. 703, 45. & Com. 717. &
Com.
Warr that comence by Disseisin having nothing to do with
the pres't Case I shall take no further Notice of them.
The Warr of the Defts. Fa*r in this Case must be collat acc'o
B350 VIRGINIA COLONIAL DECISIONS
to the above Detin bee. tho' the Warr descends lineally to him
from his Fa'r Yet the Lands to w'ch the Warr is annexed being
the Inher of his Moth'r co'd not descend to him from his Fa'r
nor he bv anv Possib. derive a Title to them under his Fattier
I have entered into this Distinction of lineal & collat Warr that
the Authorit\-s I shall produce may be the better understood
not that I think the Terms of any great Use in the true Learning
& Expl. of Warr But rather conceive with a gr't Man (Vaughan)
that they ser\'e more to perplex & intricate than to illustrate
any useful Learning on the Subj. Vid. Vaugh. Bole & Horton
Littleton has made his Chapter of Warr very obscure with
these Terms & Coke in his Comm has rendered it more so
The princ Learning on Warr is to know Whether a Warr
binds or not And that is the Question here
Now at the Com Law all Warr exc such as comenced by Dis-
seisin were binding And descending upon the Heirs of those who
made them were Bars to such Heirs to claim any Thing in the
Lands to w*ch the Warr were annexed This Doctrine Litt.
expressly teaches s. t>97.
If they bound at the Com Law they must do so in all Cases
unless the Law is altered by some Stat
[323] Only four Stat's w'ch restrain Warr viz Glouc. Westm
2. De donis. 11. H. 7. & 4. & 5. Ann. 16. but this last is not in
Force here
The Stat, of Glouc. w*ch was the first restrains the Warr. of
Ten't by the Curtesy & of the Husband of the Wifes Inher in her
Life time from barring the Heir of the Wife unless Assets in
Fee simple descend from the Father to the Heir of which more
by & by
The Stat, of Westm. 2. upon w'ch Estates tail were first intro-
duced speaks nothing expressly concerning Warr but in gen'l
Terms restrains all kind of Alien'a of Ten't in tail from barring
the Issue & consequently Alienation w'th Warranty The Words
are\*' Non habeant potestatem alienandi quo minus ad exitutn
** illorum remajieai {sc, teftementum) post cor urn obitum*'
^ The 11. H. 7. restr the Warr of a Woman Ten't in Dower for
Life or in Tail of her Husbands Gift but of this nothing need
be sayed in the present Case The Stats, of Glouc. & Westm.
are those only w'ch concern the present Question I shall there-
fore consider the Case upon both these Stats. And first upon the
Stat, of Westm
BARRADALL'S REPORTS B351
The Lessors Mother in this Case was Ten't in Tail And if this
Alienation with Wan* had been made by her it wo'd not have
barr'd her Issue (at least with't Assets because such Alien'a
is expressly restr by the Stat, of Westm. And the Warr in that
Case must have been lienal because the Issue must derive his
Title under the Ten't in Tail
But the Stat, has only restrained the Alien*a of Ten't in tail
from barring the Issue for even such Alien'a with Warr will bar
a Rem'r man or even the Donor of his Reversion if the Warr
descends upon him 1 Inst. 374. a. b. (Sed qucere as to Donor &
vid. Bole & Horton)
And so in like manner the Warr of any collateral Ancestor
descending upon the Issue in tail will bind the Right of the
Estate tail & bar the Issue for such Warr are not restr by the
Stat. 1 Inst. 374. b.
This Doctrine may seem very harsh but the Law is however
very clear & plain And it is to be considered that the Law in this
Case is not so much founded upon the Reason of Things or
what may be called strict natural Justice but upon certain
Rules & Principles introduced & established for public Con-
venience
Littleton in his Chapter of Warr s. 712. says that a collateral
Warr is a Bar to him that demandeth Fee tail unless in Cases
that are restrained by the Stats. & he puts sev'l Cases to illustrate
this Doctrine
If Lands be given to a Man & the Heirs of his Body who marries
discontinues the Tail & dies And his Wife after his Death rel.
to the Discontinuee with Warr This Warr descending upon the
Issue in tail is collateral & a Bar S. 713.
In this Case the Alien with Warr. of the Husband who was
Ten*t in Tail wo'd not have barr'd his Issue because such Warr
wo'd have been lineal & is restr. by the Stat of Westm but the
Warr of the Wife descending upon the Issue in Tail is a Bar
because her Warr is collateral to the Issue & is not restrained by
the Stat, for no collateral Warr is restr. by the Stat, of Westm.
[324] as appears from 1 Inst. 374.
This Case differs nothing in Substance from the present There
the Husband was Ten't in tail & the Warr of the Wife barr'd
the Issue Here the Wife was Ten't in tail & the Warr of the Husb.
as we say bars her Issue So if Ten't in Tail discontinue the
Tail has Issue & dies & the Uncle of the Issue rel. to the Dis-
L^l lECISIOXS
: t-jz: -« — : irr £l zix-.s t~_-': -n l55:ie this Warr desceniin^
1 Trr ~ i: Ti.1 :.l5 Irrirr S.rj? ii>::r.*:ii: the Tail & dies vSc
^.ir: zii : :!■: > ZL -;. ". 'ji-r Z--f^: I'tir TTth Warr& dies without
Ifc?^^ ~ ^i^ xTT !'::>.-- iiri: :!'•.' tJi»r el Irst Szii IS a BaT to him
Ir : "I "r.::^ Jj^r^ *-!►; irr n-z5t le :*:Ilaterai bee. the Iss'jie
:r _i^ ..ijrr.- ir 1 i. .."-f — r_ i^r ns Ln^e nor the ei-::er
?~ *-:*;r r~,T: -:- zi^ilz Ani trzv ire Bars net directh" & j
"* . "" 'zk-z '-"r -i-^* ::*li.Trril TvTirr r-t h^cause no collateral
T'r»zr; iTr i. ? ir: :«rr : : ."irfr Cis-es m Lin. to the same Ihir]:«c»se
1 T". . r*. ■ ^1'*' 71.- A^i C.kz :=: his C:tn en L. 709. savs it
rjL.: ':«;-T x'T-.r*. *zi -n 7 iri t: retrain cillaterai Warr unltrss
A^sczs ii-k-x" ->, i r~.rr tr.*: s^ine Anj^-stir h-jt it never t^^-^k
-i~;vt r«;\: :t T . i '^zjS^zz. :■_ m,ti Ass^irir.rts 1 Inst. 3<o. b.
A-i T ^"^ ': .r :'- r^j-r ilriiiv c::€i he says y't a collat
V- -LT TM -•; ': V i J-. . ::- .^LTT't^T :r i. th r mi the Right of an Estate
tjL-' T.':> : .\.5^':s Arl the Reis.::: ther^-:f he savs is the Stat
."V .'V* -o :\-r :>^: :t :s n:: miie rj the Ten't in Tail as the Lineal
A::cr rvi.l.-i: s.:rr-f :: th-e Aiithrrit'^-s I have quoted I hoT^e
1 shjil! hj^ve su^r.'fr-tly rr:vei that the Warr of the Lessors
r^ -T'.n him ^ a Bar in this Case with't anv Re-
-.^v ». -.
j*-»- V. ,^ ,_.i «\N>c ,> — t>Orn_--Jl
Lcj:^ L::: S. • -7, 71::. 7:.^. 7 x 7 v. 1 Inst. 373. b. & 374. ♦>
As to the Rt\is.:n :f the Law is^hy a ccllateral Warr shall bar
I can r.r.i .^r^y ^r.^ i -h-at is nitntirne'd by Coke in his Com. on
L. 7^.^V \-ir A rrv<urr-r:i:n the Law makes that no one wo'd un-
nattirally vi.sirhtnt h.s lawf. Keir unless he left him greater
Aivancm't .\V»ro c^jrsurr:::ur isJiWram posteriiatem su<r
f^s:u>^ss^ And ac*: this Prestm-.rtirn he savs the Law will admit
no Prcc:
How s:lii cr sa::s:act:r\- this Reason may be is not my
Business to enquire It is encugh that I have shewed the Law
to be clear & plain in the Pcint
But I cannot conclude with/t taking: Notice of one Authority
more a Passage in Cokes 2 Inst. 274. in his Conmi upon the
Stat, of GIouc. And the rather bee. it is expressly in Point His
Words are *• If the Lands are intailed to the Wife the coUat Warr
** of the Husb. shall bar " And so I shall leave this Point
BARRADALL'S REPORTS B353
I am next to consider this Case upon the Stat of Glouc And
endeavour to shew that it is not within that Stat as I hope I have
already proved it not to be within the Stat of Westm.
[325] The Words of the Stat of Glouc. are these '* If a Man
alien a Tenem't that he hold by the Law of England his Son
shall not be barr'd by the Deed of his FaV (from whom no
Heritage to him descended) to demand & recov'r by Writ of
Morbdancestor [sic] of the Seisin of his Mother altho* the
Deed of his Fa*r doth mention that he & his Heirs are bound
to Warr And if any Heritage descend to him on his Fa'rs Side
then he shall be bar'd to the Value of the Heritage to him
descended &c. Likewise in like Manner the Heir of the Wife
shall not be bar'd of his Action after the Death of his Fa'r &
Mother if he demand the Inheritance of his Moth'r by Writ
of Entry w'ch his Fath'r did alien in the Life time of his
Mother' '
The first Branch of this Stat, relates to Alien*a by Ten*t by
the Curtesy The latter to Alien'a made by the Husband in the
Wifes Life time of her Land It is within the latter Branch only
this Case can be bro't if it is within the Stat, at all w*ch I con-
ceive it is not
When this Stat, was made 6. E. L there were no Estates tail
in the present notion of them. They were introduced upon the
Stat. Westm. 2. not made till 7 years after 13. E. 1. It cannot
therefore be supp'd that the Makers of the Stat, of Glouc. co*d
intend to restrain the Alien'a of an Estate not then in being And
tho' the Word Inher w'ch is the Word made Use of in the Stat,
may in its general Signific'a as well be applied to Estates tail as
Fee simple Yet for the Reason given in this Case it must be
restr to Fee simple Estates only w'ch were the only Inheritances
then known in the Law
Upon this Reason I presume Coke in the Pass, just now cited
from his 2 Inst, in his Comm. upon this Stat. & this Branch of
it says If the Land is intailed to the Wife the coUat Warranty
of the Husb. shall bar w'ch proves this Opin. that the Stat, only
extends to Fee simple Estates of the Wife.
Then Litt. S. 712. before cited says * A collat Warr is a Bar
'* to him that demandeth the Fee tail except in Cases that are
** restr by the Stat & in other Cases as shall be sayed hereafter "
And in all the Cases put by h"m as Exams to his gen'l Rule
there is not this of the Husband's Alien'a with Warr of the Wifes
.. 1. .^
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ii
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.^_^- i = i:r±n-i:7 i
- - . - , .■&,
^ ~ Z » ~^ ~ '*^ ^ m." '^ ~ ** ^iS>.SC ^^
-.' «. i.
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fr-irr zi Ti-l IS "«"-_ if 1. irr rj
^ ^ ^b^*£ta_ _^ _ ~f^ *^" ~ ^9^ ^^ ^ ^ " — « "" ^"^ ^^ "" ^ ^ ^^ ^
: :i r-e
» ^C>^w ^.»
^, ^,'».^ ' i,^__— « ■^ - .^ _^ — V - ■" -.. -"— - - ., ..»i«V- '*•.«.«..■*--• T »--5-
r
the c:her 21. E. 3.
x-
h;*. \:.*: E\, c: this Statute has z:t r^e^n carrd so far as to the
;.r' v-r.t Cav; vfz an Ali-en'a hy the H-^b. of the Wiles Inher.
;r *,;«;: a-, :-. ;.rovf:<i h«oth frcm Litt. &: Ccke And therefore I con-
fl^i^lf. that this Case is quite out cf the Stat of Glouc. & conseq.
*},nt th'-re \,^.;r.y or not being Assets dc^es not differ the Case
BARRADALL^S REPORTS B355
But if this Case sho'd be taken to be within the Eq. of the
Stat. Then there being Assets the Warr is unquestionably a
Bar to the Value
For tho' no Mention is made of Assets in the latter Branch of
the Stat, that speaks of an Alien'a in the Wifes Life Yet the
Words ** Likewise in like Manner " so couple the two Branches
tog*r that it has been always taken & understood that Warr
& Assets are a Bar in that Case as well as if the Alien*a was by
Ten*t by the Curtesy 2 Inst. 294.
And the Words of the Act in the first Branch are very express
** that if any Heritage descend to the Heir from his [327] Father
*'he shall be bar'd to the Value " 2L E. 3. 28, 29. 1 Inst. 365.
a. 8 Co. 52, 53. Sims Case.
In this Case the Assets descended are of the Value of 288-15.
The Prem. ;^.323-15. So that in any View the Lessor can only
have Judgm't for the Value of £.35.
For the Pit. it was insisted as to the 1. Point that having bro't
his second Ej. within ten Years after Judgm't ag*t him in the
first he was within the Equity of the Saving Clause of the Act of
Lim And so the Court seemed to think
As to the 2. Point it was insisted that the Lease & Rel. made
no Discontinuance the Estate was not divested displaced or
turned to a Right & so the Warr was no Bar — This being un-
answerable was acquiesced under
Judgm't for the Pit. Apr. 1741. Rightly as to the 2 Point.
But Q. as to the first.
Vid, as to 2. Point ante 197. the Case of Richardson & Mount-
joy & these Authorities 1 Inst. 388. b. 271. b. Lit. S. 606. Sey-
mors Case 10 Co. 96. b. 1 Sand. 260. Cart. 208.
Dancy & al ag't Willard's Adm'rx
The Case is shortly this
A man dies intestate leaving two Parcels of Land & a personal
Estate not suffic't to pay his Debts He has no Heir in this
Colony His Widow takes Adm'econ & also enters upon the
Land She administers all the personal Estate paying among
others a Debt by Bond
The Pits, being Simple Contract Cred'rs unsatisfied bring this
Bill ag't the Adm'x praying a Discovery of the personal Estate
& a Satisf. out of that but if that is not suffic't then out of the
T':ti •z^^rT'.n-il Zi^-ir-: is italic r. ITj^e HiiC'i Zecr r f r"r
il^-:*tr:^ it inkni.^v^ ± tjlc Z#tf:. zi r :.sfii:tL :t iliie Lane iJj? Corr
Lar.'ii i'--:.:tr: fn'i ' /->' t: ' t:-^ ':»rc i rhe B.icii Deer -rinh Tch.
hi* IS ^h^iTTTal'-.e z^zz. 'i»r*rn t i it:^ :i zhe rer5»:nal Assets
Ar..i "r.ii * •^-.Tijti*: 5«: iiear a r irn- n n-: iirat I ii-l ZfZZ ex-
s*^-' I ih'". i '-e cnt *: lie Tri^i'ile :c sij-n^ n~cri :n *hai Head
1 ^iiC»"i rr "1 le ^T^ Tm. '* Tt^ii*. iiv^z_** m .^.'Z. t.^t^t wnien? \.reo. rs
Tc?.*'. ::an iharz* the r^al Eit^te 'srill vet tike Sattsf. out cf the
z/'frv.rjiL TrhrrretT ther^ is a D*r±':Ler.cv :: Aisets tc satis£e other
Crr^ ri Trh'. ::an :rlv zharxe the cer&iral Estate at Law Ec^tv
ir.W z^'i* the list rnent' i Cpri'rs ir. the Place •:: the f rst & decree
th/rtn a ^ati^f 'Ot:t of :he real Estate
Tr.us £3 certainlT azreahle to natural Justice that the Heir
sr.'riA z^SLT that Burthen :he Law has cast upon him when
oth-^rrTrise his Ancestors E>eh:s cannot be satisned It is founded
ury-^n th-r Rule of E-tualitv & an:ther Rule He that will have
Eq. rr.u%t 'io Equity
In the Nature of Things abstracted from positive Laws all
I>:r/t^ are equal & ought to be equally satistied Equity however
will not so far supersede the Law as to subj. the real Estate at
all Events But where there are Debts with w'ch that is charge-
able it will lend its Assistance to put that Burthen upon it w*ch
by Law it ought to bear And will take away from the Heir his
unreasonable Gain to make up the Loss w'ch the Simple GDntract
CrftfVrs wo'd other^'ise sustain
And as the Heir is intitled in Eq. to the Aid & Assistance of
the personal Estate where he is charged with his Ancestors Debt
& there is personal Estate suffic't to pay it So by the same Rule
of Eq. where the personal Est is swept away by Debts with w'ch
he as Heir or the Lands descended to him are chargeable He
otj^^ht to satisfie those Cred'rs who can only charge the personal
Estate at Law.
BARRADALL'S REPORTS B357
Besides it is obvious that unless Eq. did interpose upon these
Occasions a Door would be open to great Frauds for how easily
might an Ex'r by Combination with the Heir suffer all the
personal Assets to be to be [sic] taken for Debts with w'ch the
Heir is chargeable & so entirely defeat the Simple-Contract Cred'rs
Thus as well to prevent Frauds as to do equal Justice to
Cred'rs It has long obtained as a settled & established Rule in
Eq. that wherever Debts with w'ch the real Estate is chargeable
are paid out of the personal Assets And there is not suffic't left
to satisfie other Cred'rs that the real Estate shall be answerable
for the Value of the Debts paid.
And this Eq. has not been only extended to Cred*rs but even
to Legatees
As where a Testor mortged his Land & also entered into a
Stat [sic] to the Mortgee And by his Will devised a Legacy of
500;^. And [329] the MortgeB took the personal Estate in Exon
upon the Stat, so that there was not suffic't left to satisfie the
Legacy The Legatee had a Decree ag't the Heir to be satisfied
out of the Land 2 Ch. Ca. 4. Anonimus If Eq. will give this
Assistance to a Legatee How much more to a Cred'r Indeed the
Chancellor in that Case declared that tho* the personal Estate
ought to be applied to ease the Heir where he is chargeable with
his Ancestors Debts Yet where there was a Deficiency of Assets
to pay other Cred'rs or even Legatees the Heir sho'd not turn
his Charge upon the personal Estate but that where both co'd
be satisfied both sho'd be satisfied And sayed it looked like a
Fraud to charge the personal Estate with the Martg'a And cited
sev'l Preced'ts of the like Decrees
The like Point is determined in Culpeper & Ashton 2 Ch. Ca.
115. And there sayed when the personal Estate is emploied in
Ease of the Heir & Lands so much of the real Estate as is eased
shall be liable
So there being a Judgm't Cred'r & a Bond Cred'r And the
Judgm't Cred'r took the personal Estate in Exon Upon a Bill
bro't by the Bond Cred'r to be put in the Place of the Judgm't
Cred'r Com'r (Hutchins) was for relieving him saying in many
Cases the Heir has the Fav'r & Assistance of the Court to make
the personal Estate liable to Debts in Ease of the real And he
thought it reason'a e converso that as the Heir was to have Equity
he ought to do Eq. But w't the Decree was does not app'r
Powy a Marsh 2 Vern. 182.
■^' . • -: X ? r- line -1 "-r-i- '%i.
v,r-r :-,r a Sa^L-.f. -,»:- -.f Tlie r^al E*::i*-i i: -je^^rill have hai n r^-
•'...»
Tr.'i ^r.!v (/-i-^.ti'.r. thrrr. 15 Whether :m-ier rhe CircT:rr..staiices
fA *r,;^ Ca-^ th^ Hr::r hein^ ah^ser^t i trnknc-jm & the Deft, ii:
Po<.'/.^ri of *hft Lar.i the Cctirt ttlI n:t 5*-ih;. the Land in the
Haryh of th*: Deft. \r. ihe same Manner as thev wo'd if it was in
*,h^; llar.^!^ of the Heir to satLsne the Pits. Demands.
There 7/u\ e/rrtainly be a failure of Justice if the Co'rt will not
'nAf-s^A/: the Heir may never come here He may sell with't
ry/rr.in;; & then the Fits, must be quite with't Remedy
I ean ve no Diff . in Reason between this Case & the common
OTif %'\\('T(t an abse-nt pson is indebted & has Effects in the Hands
fA a third f>son In w'ch Case this Co'rt relieves every Day
The iJeft. is und^/uhitedly accountable to the Heir for the
I'rofitft And conseq. to the Pits, who are his Cred'rs Admitting
tliat thf Deft, ought not to acco't for any Profits past upon the
Matters rlisf:Iosed in her Answer Yet surely she will be for future
I'n^fits hi'X hvr then either pay an annual Rent till the Debts
are rlisrharj^ed or deliver up the Land to be sold
BARRADALL'S REPORTS B359
One Parcel would satisfie Pits. Deft, may keep the other for
her Dower And as the Land is of small Value & will not pay the
Pits, in many years we hope one Parcel will be decreed to be sold —
It is the Course of Eq. where Profits will not pay Debts in a
reasonable Time And was so decreed here lately in one Ogilby's
Case
Boni Judicis est ampliare jurisdiciionem Co*rt sho'd extend the
Arm of Justice further than usual where there wo'd be otherwise
a failure of Justice. Fr Jekyl Council Prec. Ch. 329.
As to the Distinction betw. Debts that are an actual Lien upon
the Land & those with w*ch the Heir is chargeable in Respect
of the Lands descended to him there is no Foundation for it in
Reason or Authority.
No such Distinction in any of the Cases And tho* they are all
Except Sal. upon Mortges &c. w'ch are actual Liens Yet the
Reasons they turn upon hold as strongly where they are not so
but the Heir is only chargeable
The Reasons are L Upon the Rule of Equality that all the
Cred'rs may be satisfied 2. bec'a the Heir has freq. the aid of
the personal Estate & therefore ought to do the same Equity
he receives & 3. to prevent Frauds & Combinations betw. the
Heir & ExV
All these Reasons equally hold whether the Land is chargeable
itself or the Person of the Heir in Respect of the Land
But the Case in Salk. was upon a Bond Debt & so is a full
Ans'r to this Obj. See also Talb. 54. Chancellor's Opin.
[331] Edmondson vs Tabb. In Council.
Thomas AUaman seised in Fee of 700 A. of Land died Intestate
leaving Issue Judith a Dau*r by his first Wife and by his 2d Wife
3 Sons John, Thos. & W'm
John & Thos. both died under Age with't Issue
W'm entered & was seised & died seised in 1732. leaving a Wife
Thos. a Son & Sara a Daughter.
After his Death his Wid'o cont'd in Possion & marr'd John
Tabb by whom she had Issue Humphry Toy Tabb
Thos. the Son of W'm died soon after his Fa'r under Age &
with't Issue Sara died in 1741. with't Issue being ab'tl2 Years old
Tabb & his Wife being in Possion sued out an Escheat Warr't
in Order to obtain a Grant of the Land either to the Wife as
B'M'A) VIRGINIA COLONIAL DECISIONS
being in Possion or to their Son H. T, Tabb Bro'r of the half
Blryyi to Sara
An Inquisition has been taken & returned Judith the Dau'r
of Tho's Allaman the Grandfa'r enters a Caveat She is Aunt
of the half Blood on the Fathers Side to Sara
Since the Inquisition Tabb & his Wife are both dead I app'r
for their Son the Bro'r of the half Blood And the Question is
Whether Yo'r Hon'r will order a Grant to him Or to the Aunt
of the half Blood.
They are both equally excluded from the Succession by the
Rules & Maxims of Law concerning Descents I presume therefore
Yo'r Hon'r will consider this Case abstracted from those Rules &
favour that Party whose Pretensions are best supported by
Reason Equity & natural Justice
The Aunts' Equity is founded solely in this that the Inherit-
ance came originally from the Allamans And she being one
ought to be preferred to my Client who is only a BroV of the half
Blood by the Mother's Side & not of the Blood of the Allamans
This at first View may seem an Argum't of some Weight but
when closely consid'd it will app'r to have little Foundation in
the Reason of things & strict natural Justice Its whole Weight
& Force if I mistake not take its Rise from the Rules of Law
concerning Descents It is a Rtde in the Law of Descents that
an Inheritance coming from the Fa'r shall never resort to the
Line of the Mother but shall rather escheat
This Rule is in a Manner peculiar to the Law of England I
cannot say it is absolutely so because I have read that in some
of the Provinces of France w'ch are governed by theirown par-
ticular Customs the same Rule obtains But it is not the public
or general Law of the Kingdom Neither is it an Institution of
the Roman or Civil Law Of the Jewish or Grecian Laws or any-
other Laws that ever I read of *
It is very certain Mankind are generally preposses'd in Fav'r of
the Laws of their Country And are apt to think them the most
agreable to Nature & Reason But I humbly appr that the Rule
we are speaking of is a meer arbitrary Institution not founded
on the Reason of Things or natural Equity & Justice [332] For
where is the Reason that a very remote Relation on the Father's
Side sho'd be preferred to a very near Relation on the Mothers
Nay that the Land shall rather escheat than come to such near
Relation The Law of Nature calls the nearest Relations to the
BARRADALL'S REPORTS B361
Succession for this Reason that Men are bound by the Laws of
Society to provide for them in the first Place And the Presump-
tion is that there is the greatest Affection towards them Every
Law then that excludes the nearer Relatives in Fav*r of the more
remote is in my humble Opinion contrary to the Law of Nature
& Reason
I have sayed thus much Sir in hopes it may serve to prove
w't I at first advanced that our Adversarys Pretensions are not
founded in the Reason of Things & natural Justice but take their
whole Force from a Rule of Law cone Descents w'ch I apprehend
has nothing to do in the present Question. Nor prove any Thing
as to the Reason & Equity of the Thing for tho' these Rules
ought to be strictly adhered to in Courts of Judicature where the
Judges are bound by an Oath to determine according to Law
Yet where a Matter is left at large to the Will of the Prince or of
those who act under him I humbly conceive the Law of Nature &
Reason is the best Guide to foil
This Sir is the Ans'r I give to the Pretensions of our Adversary
I will now beg Leave to say a Word of the Equity on our Side
And first, I appr. that as we are in Possion & have made the
first Applica. We are intitled to a Grant by the Charter granted
to this Country the 18. Car. 2. The Words of the Charter are
** All Lands possed by any Subj. inhabiting in Virg'a w'ch is
** escheated or shall escheat shall & may be enjoyed by such
*' Inhabitant & Possessor his Heirs & Ass. forever paying 2 lb
*' Tob*o for every Acre
I can't say how this Charter may have been construed But it
seems plain to me that the Intent was that the Possessor of any
Land escheated sho'd be preferred to a Grant of it How else can
the Words be satisf'd " All Lands possed w'ch shall escheat
shall & may be enjoyed by such Possessor " If this was not the
Intent of the Charter I sho'd be glad to know w't the Use of the
Clause was or if those Words ** Lands that shall escheat "
I shall submit this Point to Yo'r Hon'rs I thought it my Duty
to urge this Matter for my Client And the rather as I have not
known any Determination of the kind
But if this will not prevail Then I humbly contend that We
are the nearest Relation a Bro'r of the half Blood And on that I
Acco't have the best Title to be preferred It will scarce I pre-
sume be disputed but that a half Bro'r is a nearer Relation than
a half Aunt If then the Rules of Law cone Descents & the i
I
Bli&Z VIRGINIA COLONIAL DECISIONS
Argum'ts deducible from thence are out of the Question as I
conceive they are I do humbly contend that by the Law of
Nature we have the best Right to succeed
There is no Law I believe except the Law of England that
absolutely excludes the half Blood from the Succession And I
[333] believe it would puzzle a Man to assign any one tolerable
Reason why it should be so I mean in the Reason & Nature of
Things
The Roman or Civil Law is certainly much more equitable
w'ch allows Brothers of the half Blood to succeed in the second
Place that is where there are none of the whole And in collateral
Descents makes no Distinction betw. the whole Sc half Blood.
1. Domat 684 Hist. Com. Law. 214.
The Jewish Law makes no Distinction between the whole &
half Blood Nor do I remember to have read of any such Dis-
tintion in any of the Grecian Laws
The Roman Law is all*d to be the most equitable Law in the
World And I presume will be thought no bad Guide to follow
Besides it is plain that there is no other Foundation for the
Difference betw. that & the Law of Engl'd but the Rule cone.
Descents for even by our Law in the Succession to Chattels no
Diff. is made betw. the whole & half Blood
Upon the whole I rely first upon the Charter We are in Posses-
sion & made the first Appl.
2. That if we are excluded by the Rules of Law So are they
And then as we are the nearest Relation We have the best Title
to be preferred.
3. We sho*d even succeed by the Roman Law And as that
is y'e best Pattern of natural Equity & Justice I hope it will be
a good Rule for Yo'r Hon'rs to follow
The Reason why the Laws prefer the nearest Relations is from
a Presumption that the Intestate would have done so if she had
made a Will If this Arg't is to weigh there can be little Doubt
but that a pson wo*d rather prefer a Bro'r of the half Blood than
an Aunt
I only add that we have some Equity in Applying first &
having been at the Expence of an Inquest &c.
Our Rules of Descent are meer arbitrary Institutions not
founded on the Reason of Things or natural Justice And had
no better Foundation perhaps than Accident or the humours
BARRADALL'S REPORTS B363
or Designs of particular Men They are not the Subj. of any
written Law but have been introduced by Custom & Usage &
have undergone various Alterations as app*rs from Sr. M. Hale
Hist. Law.
[Barradall proper (Law Library Copy) apparently ends here. The pages that
follow are in a different handwriting, and the editor will be better able than I am
to determine their relation to Barradall's Reports. To me they seem to be the
opinions of the persons who signed them. — W. W Scott.]
The pages follow'g are in a different hand, and horribly misspelled throughout
— -W. W. S.]
[334] A CASE
Mary Whaley of the Parish of Bruton near Williamsburg in
the Colony of Virginia but at the time of her Death and several
Years before at the Parish of St. Marg'ts Westminster in the
County of Middlesex Widow made her last Will and Testa, in
Writing under Hand and seal bearing date 16th of Feb*r 1741,
and executed the same in the Presence of three Witnesses who
subscribed their Names thereto did thereby among other things,
give devise & Bequeath as follows, I give Devise and Bequeath
unto the Minister & Church Warden for the time being of the
s*d Parish of Bruton in the County of York in the Colony of
Virginia and their Successors a Certain Peice or Parcel of
Land in the said Parish of Bruton Containing by Estimation
10 a. little more or less together with Matteys School House
and Dewling House lately Erec'd and Built thereon for the Use
of a School-master to teach the neediest Children in the same
Parish who shall be offered (in the Art of Reading Writing and
Arethmetic) and Bounded by the Main Road leading to Queens
Creek and beginning at a Gully of Runing Water surrounding
the s'd 10 Acres of Land and adjoining on Mr. Peppers Land
which peice or parcel of Land, Schoolhouse & Dwelling House
together also with all out Houses, Gardens and appurtenances
thereunto Belonging, I give and devise unto the s'd Minister and
Church Wardens for the time Being and their successors forever
upon Trust to Continue the same for the Use Benefit and Behoof
of the said Matteys school for the purposes above mentioned to
Eternalize Matteys School by the Name of Matteys School forever
and to and for no other Use intent or purpose whatever I give
to Matteys School af'd the summ of fifty Pounds Sterling to be
paid to the said Minister and Church Wardens for the time being
and their Successors at the rate of ten pounds A year for the Use
r.-i
,x ,,
«.^' >.
Ar.l rr-a.i't ''ine< FrxnrLfrT Ex r :i 2'rr s' 1 WiZ Wz: h-iih
Br 2.r. A'JZ :: Par li^merit z:uiie 1:1 the 9th Year :: his Present
Ma'-^r^tv rl:r^ Ge^rzr the feitrc irthlei An Art tc Restrain the
> ^ -> -
D'jit.c<:t:'.n 'it Lani? •:^her^hv the same Became unalienahle is
arr.'.r.^ oth-trr thir^i Enactei that trtm ani after the 24. c: Jtme
'xhi'.h shall be :n the Year :: cjlt Lcri IT^.^** no Manners Lands
an-i Tenem'ts R-rnts a.ivv-ii«:r_5 or ether Hereiitantents Cort;»:real
or Ir-Cort,r,reaI ^rhat^.ever or anv sum or stints cf Monev Gc-ckIs
* « «
Chattels Stocks in the Puhhck Funis Securities for Money or
any other Personal Estate whatsoever to be laid out or disposed
of in the Purchasing or any Lands or Tenements or Heredita-
ments shall be given granted aliened Limited released transferred
or a=i signed or appointed or any ways Conveyed or settled to or
u^K^n any Person or Persons Bodies Pollitick or Corporeate or
otherways for any Estate or Interest whatsoever or anyways
Chari^ed or incumbered bv anv Person or Persons whatsoever
in Trust or for the Benefit of any Charitable Use whatsoever
unl'r^s such gift Conveyance appointment or Settlem't of any
such Lands or Tenements or Hereditaments sum or Sums of
Money or Personal Estate (other than Stocks in the Public Funds)
be and be made by Deed indented sealed and Delivered in the
presence of two or more Credible Witnesses 12. Calender Months
at Ivfiast before the Death of swch Donor or Grantor includ'g
the Days of Execution & Death and be inroUed in his Majesties
High Court of Chancery within six Kalender Months next
after the Execution thereof and unless such stock be transfer*d
in th(; Publick Books usually Kept for that Purpose six Kalender
Months at least before the Death of such Donor or Grantor in-
BARRADALL'S REPORTS B365
eluding the Days of Transfer & Death unless the same be made
to take Effect in Possession for the Charitable Use intending
[336] Immediately from the making thereof and be without any
Power revocation Reservation Trust Condition Limitation,
Clause or agreement whatsoever for the Benefit of the Donor
or Grantor or any other Person or Persons Claiming under him
And be it further Enacted by the authority af'd that all
gifts Grants Conveyances Appointments Assurances Transfers &
.Settlements whatsoever of any Lands Tenements Heriditaments
or of any Estate or Interest therein or of any Charge or Incum-
berance Affecting or to affect any Lands Tenements or Heridita-
ments or of any Stock money Goods or Chattels or other Personal
Estate or Securities for Money to be laid out or disposed of in the
ptirchase of any Lands Tenements or Heriditaments or of any
Estate or Interest therein or of any Charei or Incumberance
affecting or to affect to or in Trust for any Charitable Uses
whatsoever which shall at any Time from and after the 24th of
June 1736. be made in any other maner or form than by this
Act directed & appointed shall be absolutely and to all intents
and purposes nul and void.
The Testatrix did not make any Deed of Gift Conveyance
appointment or Settlement of the Lands School House & Dwell-
ing House mentioned in her Will to the Minister & Church War-
dens of the Parish of Bruton in Virginia af'd or any other Person
or Persons in Trust for the Charity in her Will mentioned or of
the rest or residue of her Personal Estate given in and By the
s'd Will to the Minister & Church Wardens af'd for the Charity
therein mentioned twelve months (or any other time) before her
Death acc'g to the s'd Act but only gave the same by her Will
to the minister and Church Wardens af'd
Qu'st: W nether the Devise by the s'd Will to the Minister &
Church Wardens for the time being of the s'd Parish of Bruton
in Virginia & their successors of the s'd Peice or Parcel of Land
with the said Schoolhouse & Dwelling House Built thereon upon
Trust in the s'd Devise is a Null & Void Devise by Virtue of the
Said Act
[337] Answer. This Act of the 9th George being not expressly
mentioned to extend to our american Colonies I am of opinion
» Charge? W. W, S.
B/A/i VIRGIXIA COLONIAL DECISIONS
it '^loth cr^t Bind thera therercre that the Device c: the Loni in
Vir^finia to a Chant v is not Void bv that act. But as it is a
Devi=€ to Persons & their Successors who do not make a Ccr-
p'y ration I conceive it is not su^cient to Vest the real Estate
but it gives a right to it in Equity in the name of the att. General
in Virginia ag't the Heir at Law
Qu. 2d. Whether the Gift to Matteys School of the s'd Sum
of ^)f)£. to be paid to the Minister & Church Wardens aTd c:
Bruton & their successors at jf.lO. a year for the use of the s*d
school is a good Bequest to the s'd ministers & Church W^ardens
af VI and their successors & if the Ex'r of the s'd Will mav safelv
pay the sVl 50j^. to them notwithstanding the s'd Act or whether
the s'd Gift is null & Void by Virtue of the s'd Act
Answer. I am of opinion this Legacy of ;f .50. is good and ought
to be paid by Installments of ;f 10. annuity till the whole is paid
& the Ex'r may safely pay it to the Minister & Church wardens
for the Benefit of the school.
Qu. 3d. Whether the Bequest by the said Will of all the rest &
residue of the Testatrix's Personal Estate after payment of her
Debts and Legacies to the minister & Churchwardens for the
time being of the said parish of Bruton in Trust for the use &
Behoof of the said Matteys School for the purposes in the said
Will above mentioned is a good Bequest to the said Minister &
Churchwardens & if the said Ex'r may safely Pay to the Minister
Sc Church Wardens af 'd of Bruton all the Rest & Residue of the
Testatrix's Personal Estate for the purposes & Upon the Trust
in the Will mentioned not withstanding the said Act or Whether
the Bequest of the rest & Residue of the Testatrix's Personal
li^state is Xul and Void by Virtue of the said Act
Answer. I am of Opinion this residuary Bequest is good & the
Ex'r may safely pay the residue to the Minister & Church
Wardens
Qu. 4th. Which is the Best and safest way for the Ex'r to act
to prevent his Coming into any trouble about the Lands Devised
to the Minister & Church Wardens [338] afs'd and also the £,bO.
& the Residue of the Testatrix's Personal Estate Bequeathed
upon Trust for the Charitable Uses afores'd
Answer. The safest Way for the Ex'r to act would be for an
Amicable suit or information of the Att'o General the Relator
of the Minister & Church Wardens ag't the Ex'r Heir & to Estab-
lish the Charity & to have the proper Directions for the Manage-
BARRADALL'S REPORTS B367
ment of it, if all parties live here it may be brought into the Court
of Chancery here but if the Heirs live in Virginia the Informa-
tion should be brought into the Court of Equity in Virginia & on
such information, such Directions may be given as will indim-
nify the Executor in Relation to his Conduct
Signed D. Ryder
9th March 1743.
Robert Jones Junior, and Sarah his Wife I a n f
And Dudley Richardson and Martha his Wife |
James Shields Respondent
The Appellants Case.
By a Certain Act of Assembly passed in the Fourth year of
Quee Anne it is Enacted that all Negroes within this Dominion
or Colony of Virginia shall from thenceforth be adjudged to be
real Estate and descend to the Heirs and Widows according
to the Custom of Lands of Inheritance in Fee simple in which
act it is Declared and Provided that in several Cases in the
Act mentioned they should be held and adjudged to be personal
Estate in the same Condition they would have been if this Act
had never been made and that upon [sic]
Which Act was afterwards Explained by [sic]
another act of assembly, which passed in the first year
of his present Majesties Reign Entitled an Act to explain
and amend the Act of the fourth of Queen Anne by which
Act after reciting that that Act [339] had been found bene-
ficial for the preservation and Improvement of Estates in this
Colony yet that many mischiefs had arisen from the various
Constructions and Contrary Judgments and opinions which had
been made and given thereupon whereby many people had been
Involved in Lawsuits and Controversies which was still Hkely
to Increase: For remedy whereof and to the End the said Act
might be fully Explained and understood; it is Enacted amongst
other things, in the words following Viz : that the said Act of the
fourth of Queen Anne shall hereafter be Construed and the true
Intent and Meaning thereof is hereby declared to be in the
several Cases hereafter mentioned as the same is herein after
mentioned and declared and not otherwise; viz; that the pro-
perty of a Slave should be Transferable by Bargain and sale gift
or Will in the same manner as if such slave were a Chattle and
^ X.
t .-r»- _^ __
.^£- _
V" " - . -^ PnlrT' — ■>.- l^-Tr ::' Yirk Ci-mrv in rhe Ccl:i:\- •::
* irv^mi L»ziii_i "^ *"-* ■ . -"" •^ 'L.i! - s.n 2. ^^ *z.c Time" ct ..is L.*to~ii
5<«^=r:l &r.i p«'.'55<rfs-ri if 51111 irv Xem Slsves rz^ie his Will the
vi=^i s*evt^ Xr-rr: Slaves, vir H^rmh^.! ani Betty his Wife.
P^t^T F::ll:tt. B^ttj a G:rl. s^i T:tn a Brv. Billy a Bc-y, and
V^-n? Kir.r^''3^ a B:v t: hi? I'2.uzhter Rerecca Pinkethman
7:.* V,::: of Mr. Pinkt-i r — s r :. Deer iTlil
'yAh\ The TeEtatcr si-cn after died iea\-ii:g Rebecca his only
Cr.ild and Heir at Law who afterwards and since the passing
this Act of the fourth of Queen Anne, and when she was possessed
of the said seven Slaves intermarried with one Robert Cobbs of
^'ork County af ores' d who by \-irtue of such his intermarriage
fA'came intitled to the absolute and beneficial Interest and
property of and in the said seven Slaves and their Increase and
uj->on his marriage possessed himself thereof
The said Rebecca Cobbs afterwards died in the Life time of her
said Husband leaving Issue one Daughter Elizabeth her only
('hi Id and Heir at Law.
UrU'ifadicd 1712.
BARRADALL'S REPORTS B369
The said Robert afterwards intermarried with another Wife
named Elizabeth by whom he had Issue two Children only Viz :
the Appellants Sarah and Martha, the said Robert Cobbs being
possessed of the said Slaves and other Real & personal Estate
duly made his Will dated 10th of December 1725. and thereby
after giving several specifick Legacies ** devised the residue of his
Estate Real and personal to his said Wife Elizabeth for her Life ;
and after her Decease to the Appellants his Daughters Sarah and
Martha Equally if then Living " and of his said Will appointed
the said Elizabeth his Wife and one Daniel Allen since deceased
Executors who after the Death of the said Robert Cobbs viz;
the 21st February 1725 duly proved the same
Upon the Death of Robert Cobbs Elizabeth his Widow and
Devisee for Life of the said Slaves intermarried with one Samuel
Weldon and they were intitled to have possessed themselves of
the said Slaves but the said Eliza'h Cobbs daughter of the said
Robert by his First Wife having in the Life time of the said
Elizabeth Weldon intermarried with the respondent James
Shields of Virginia Aforesaid the said Samuel Weldon and Eliza-
beth his Wife either under some agreement or thiough mistake
or imposition misjudging her Title were prevailed upon by the
said Respondent to permit him to take and keep possession of
the said Slaves and their ofspring and Continue the possession
during the Life of the said Elizabeth Weldon.
The said James Shields put in his Answer plea and Demurrer
to the said Bill
The said plea and Demurrer were argued and the plea ordered
to stand for an Answer and the Demurrer being overruled with
Costs from which order the respondent prayed an appeal to
the General Court but was refused as the said order did not
determine the right to the Negroes in Question
The respondent afterwards put in his further Answer and
there by and by his former Answer admitted and stated the said
[341] Wm. Pinkethmans Will and Death leaving the said Re-
becca his Heir at Law seised as aforesaid who afterwards inter-
married with Robert Cobbs and by him had the said Elizabeth
and Died and that the said Robert made such Will as in the Bill
and died leaving Elizabeth his Widow and that he married Eliza-
beth the daughter of Rebecca and in her right got possession of
the several slaves of whom the only then living were Hannibal
a Man Jack a Man Squire a Man James a Boy Will a Man George
^"T-r-r-i:-'^ icsi^
.* :.
A^
I I ~ - «
^ •
•« i
.f. -^
• - ^—
fe ^^
r _
"^ a^r •■ -^
.r » r"_ w •
. k •>^.£.»r*. s — cik».
in ^ I "~r II- 1 "^ HI iH "sris ^
...r*— ak. ^^ ^ — .-
* ti^ -
■ ^ _ » r~
tr_ * c
ihe saii cecnee and
• .-
■^ ■• «-
'-<a'« ^^ T^c c in . fl
r XatTire and bef :r\e the
Anr.e Chattels in their
BARRADALUS REPORTS B371
own Nature and what a Husb. there gained the property of in
the same manner he gained the property of any other Chattel
belonging to the Wife
Secondly. This Stat, of the 4th of Queen Anne neither altered
the Law nor intended to alter the Law in this respect this act
being made to prevent Negroes from being Distributable amongst
the nex of Kin or going to Executors or administrators by which
means they woud be divided and dissipated and in order to pre-
serve them intire in Families to make them descendible as In-
heritances to the Heir at Law but as to every other respect to
leave them as much Chattels as they were before, and Conse-
quently subject to the Husbands acquiring a property therein
to the Wifes Slaves by marriage as the Law stood before the
passing this Act.
Thirdly. That if a Doubt could have arisen upon the Con-
struction of this Act of the fourth of- the Queen touching this
matter that Point is now cleared up and made certain by the Act
of the first of his present Majesty: for by this Act of the first of
his preset Majesty which is neither a Repeal of the fourth of Queen
Anne nor an Introduction of any new Law but merely declara-
tive of the sence and mean'g and Effect of the former Statute
of the fourth of Queen Anne it is Expressly declared That it was
not the intent of that Act of the fourth of Queen Anne to take
away or alter that right and property which husbands were In-
titled to or might gain in or to such slaves as were the property
of their respective Wives
Fourthly. That there never was any Decree or Determination
touching the property of the Slaves and their offspring prior to
the Exhibiting the Appellants Bill or to the Decree of the county
Court of York in the present Cause
Fifthly. That the absolute property of the said slaves became
vested in the said Rob't Cobbs upon his marriage with the said
Elizabeth the Devisee and Heir at Law of the said William
Pinkethman who first devised the s'd Slaves and the said Rob't
Cobbs had thereby full power to devise the said Slaves and their
offspring and as he has devised all his Real and personal Estate
to the Appellants Sarah and Martha after the Death of their
said Mother, the Appellants Rob't Jones and Dudley Richardson
in their Right are now become well Entitled to the said Slaves
and their offspring and therefore the said Court ought not to have
decreed the Appellants Bill to be dismissed but ought to have
-r« • jLL.-'^ Jt.'^l n lr"IZ_
^ . — ^ ^ . ,»
X : ---'^ ."^ ".1- : 1 --_'•:- ..ir'z
'.Ic J^^-^TI-'C LrCT
.<s.>.
1 in 1
nrii±r 5»rj
-•r
" Ji. .tz
^ZTTirr
y., '^-"^ -tt-ri m r in
'.r " 'rt ^'i,'! :.'.^.'JT\ ill 1 Tr
f — J- - - r
^-^-..^r.r.i; t.-.-r j»^rr' iL.:^r:.: ani mii^n ^-it^ Trunin this
r^.rr.:r.:'.r. -'. he R.ral E-.iie: T-^er-rij it was ir.:^^ ^Vu. Enacted
:r. th-^ z J'.'.-^.r.z 7r:ri5 Viz
*' 7?^t rr.rr. ani after th-e cas^inz this A:t all Xegro Mulatto
'' ar.'i Ir.iian f^^laves in all tcurts c: Tnii:ati:n ani other places
" X'*'"*: •'"? TV— '-»'-^ ^"^-^T ^^ V^- 4 •oV--' a-.-' ar5--,--,^-1 •,-»
*' V; P'ral Estate and n'^t Chattels ani shall descend unto the
'* \W.zs and Widows cf Per^^ons departing this Life according
'* */> ir.f: C'jstotn and manner of Land of Inheritance held in
Ary/*r':r Act of Assen'/Lly va^ aft err arcs passed in Virginia
ir.t.it>:'i an Act for Lin-.itation of Actions and avoiding of Suits;
v/hc'prhy it '.^as /«/€t a//a Enacted in the foHo\iing Viz:
** That all actions of Trespass quare Clausum f regit, all Actions
of Tp' pass, Detinue Actions sur Trover and replevin for taking
away Cjoofh and Chattels, all Actions of Accounts and upon
tli'! Ca .c- ^Ahc-r than such Accounts as Concern the Trade of
M^rr.handize between Merchant and Merchant their Factors
or S'-rvants) all Actions of Debt grounded upon any Lending or
C*oTit ract without Spf.-cialty, all Actions of Debt for Arrerages
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BARRADALL'S REPORTS B373
** of Rent, all Actions of Assault and Batterey, menace, wounding
** and Imprisonment or any of them which shall be sued or
** Brought at any time after the end of this present session of
** Assembly shall be commenced and sued within the time and
** Limitation hereafter Expressed and not after, that is to say
** [344] The said Actions upon the Case (other than for Slander)
** and the s'd Actions for Accounts and the said Actions for Tres-
** pass, Debt Detinue and Replevin for goods and Chattels and
" the said Action of Trespass quare Claiisum f regit within two
" Years next after the End of this present Session of Assembly,
** or within five Years next after the Cause of such Actions or
" Suit and not after.
" And the said Actions of Trespass of Assault Baterry wound-
ing and Imprisonment or any of them within one Year, next
after the End of this present session of Assembly or within
three years next after the Cause of such Actions or Suit and
** not after.
** And the said Action upon the Case for Words within one
year after the End of this present Session of Assembly, or within
one year next after the words Spoken and not after.
** Provided nevertheless and be it further Enacted that if any
person or Persons that is or shall be intitled to any such Action
** of Trespass for Assault Menace Battery Wounding or Im-
** prisonment be or shall be at the time of any Such cause of
** Action given or accrued fallen or come within the Age of 21.
** Years Feme Covert, Non compos mentis Imprisoned beyond
** the seas out of the Country, that then such persons shall be
" at Liberty to bring the same Actions so as they take the same
within such times as are before Limited after their coming to
or being of full age, Discovert, of sane Memory at Large and
returned from beyond the Seas or from without this Coloney as
by other persons having no such impediment should be done"
William Pinkethman being seised of an Estate of Inheritance
in Fee Simple of and in Sundry Lands and Negro Slaves by his
last Will of this date devised to his Daughter and only Child
Rebecca Pinkethman and to her Heirs and Assignes forever,
seven particular Negroes and died soon after making such Will
which was proved (in the County Court) on the IGth of February
next after the Date thereof.
The said Rebecca Pinkethman the Devisee was the Testators
only Child and heir at Law and as such she Claimed all her
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BARRADALL'S REPORTS B375
And the respondent Shields thereafter Intermarried with the
s'd Elizabeth.
After the Death of the s'd Rob't Cobbs and after all the above
mentioned Transactions, a new Act of Assembly was passed
Intitled an Act to Explain and amend and Act for declaring the
Negro Mulatto & Indian Slaves within this Dominion to be real
Estate and part of one other Act Intitled &c. the material parts
-whereof follow verbatim '* Whereas the Act made in the 4th
year of the Reign of the late Queen Anne declaring the Negro
Mulatto & Indian Slaves within this Dominion to be Real
Estate hath been found by Experience very Beneficial for
the preservation and Improvement of Estates in this Colony;
yet many mischiefs have arisen from the various constructions
and contrary Judgments and opinions which have been made
and given there upon whereby many People have been In-
volved in Law suits and controversies which are still like to
increase for remedy whereof and to the End the s'd Act may
be ftilly & clearly Explained be it Enacted that the s'd Act
shall hereafter be constr'd [346] And the true Intent and
meaning thereof is hereby declared to be in the several Cases
** hereafter mentioned as the same is herein after expressed and
declared and not otherwise that is to say,
*' Whenever any person shall by Bargain and sale or gift
either with or w'thout deed or by his last Will and Testament
in Writing or by any Noncupative Will Bargain sell, give dis-
pose or bequeath any Slave or Slaves such Bargain Sale Gift
or Bequest shall Transfer the Absolute Property of such Slave
*' or Slaves to such person or persons to whom the same shall
*' be so sold given or Bequeathed in the same manner as if such
Slave or Slaves were a Chattel, And no Remainder of any Slave
or Slaves shall or may be Limited by any deed or the last Will
and Testam't in Writing of any Person whatsoever otherwise
than the Remainder of a Chattel personal by the rules of the
** Common Law can or may be Limited except in the manner
hereinafter mentioned and directed.
** And that when any Slave or Slaves have been or shall be
conveyed given or Bequeathed or have or shall descend to any
Feme Covert the absolute right property & Interest of such
" Slave or Slaves is hereby vested and shall accrue to and be
" vested in the Husband of such Feme Covert."
" And that where any Feme Covert is or shall be possessed of
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BARRADALL'S REPORTS B377
Plaintifs but that he himself had a title to them by his marriage
with Eliz. the Daughter of the said Rebecca Pinkethman, whereas
they the Plaintifs charged that the Respondent Shields had
no Right or Title to the same by virtue of such his Marriage And
Therefore the plaintiffs prayed a Discovery from the Deft,
when and by what means he became possessed of the said Negroes
and their Increase & Number Names Ages and Values of such
of them as ever came to his Hands or were in his possession and
what was become of the same, and that he might be decreed to
deliver up the same to the plaintiffs and account with them for
the Labour of the said Slaves from the Death of the said Eliz.
the Widow of the s'd Rob't Cobbs and that the Plaintiffs might
be relieved according to Equity
The Respondent was extreamly surprised at such an Extraord-
inary dem'd being now set up by the now Appellants so late
as in the Year 1748 when had the Law from 1705 for 22 years
together been capable of any such Construction or the Act of
1727. been capable of any such a Retrospect as was now Con-
tended for, there had been in Fact some thousand of Instances
where Married Women within that period had had Slaves whose
Husbands might have set up just the like Demand, but there
can be no pretence that this discovery had ever been made by
any other person or that any one Decree or Judgment had been
ever given in Favour of it in any persons Case whatsoever.
And the Appellants Case is attended with this Further Difi-
culty that as to them when the New Law made was in 1727 the
Appellants Father was not the Husband of Rebecca but he & she
had both been many years dead [348] her Negroes had 12 years
before that Act was made Descended to & were in possession of
her Daughter and Heir at Law; and such Daughter was at the
time of making that new Act her self a Feme Covert and the Wife
of the Respondent Shields.
The Deft. Shields put in his Answer Plea & Demurrer and for
answer admitted the Pits, were Devisees under the Will of Robert
Cobbs and that William Pinkethman had been seised and pos-
sessed of Sundry Slaves and had made his Will in Writing as in
the Bill, and a Devise therein to Rebecca of Certain Lands and
Slaves and said she was his Daughter & Heir at Law and that
his Devise to her could not alter her Title to her Fathers Lands
and Slaves but that the same descended to her as Heir at Law
and Admitted that she became seised thereof and Afterwards
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ar.-f h'.vivr- s-i h^r G-i,iriian_ 'hr Lezal Enaie an i the Re vers: rn
•.?.-:' V::r-4 :r. -.hr: si Infant Heir ani that the saii Rob't Cohbs
r>::r.>' '.>4>' tli^n =.'. s^isei iii cften in his Life time declare his
% '1 O.ntra-r. A: i:s.:'.a:nir i ha-i-inz any :ther title in the s"d In-
fant & E:tat^ ani never rente vei her Slaves from her Lands and
hav:n^ maie his Will he therein partictilarly mntd his own
Lar.i% ani siaves 'i/ne of wh::h he ievisei to the s'd Infant with
h'rr Increase in Lue of the prints of her Estate exceeding her
rr.enV:nanoe but omitted all the Lands & Slaves which descended
to the s*d Infant aforesaid and for that reason made the Larger
di .tribution under his Will in behalf of the Plaintiffs his other
iJauyYiU'.rs and G>heirs and this matter was so fullv known and
M:ttl':d that when Robert Cobbs died in the Year 1715, the Slaves
of tfic s'd Infant were not Inventoried nor Considered as any
j^art of the Real or personal Estate of Robert Cobbs, but the s'd
-. -J
BARRADALL'S REPORTS B379
Infant chose Hannah Shields for her Guardian in that Court of
Chancery and obtained an order or decree to be put in possession
of the s'd Lands & Slaves as the seperate property of the s'd
Infant by means whereof the s'd Infant became seised of the s*d
Lands and Slaves and the profits thereof from the Death of her
s*d Father under the Decree of that County Court of Chancery
and so Continued seised untill her Death, under which Decree &
relying upon the same he the Deft. Intermar'd with the s'd Infant
& thereby became a purchaser for a Valuable Consideration of
her said Slaves without Notice of any such pretended Title as
now suggested and had Issue by her two Daughters the Heir at
Law then Living all which he was ready to verify therefore
pleaded the s'd several descents, the s'd Long qui't and uninter-
rupted Enjoyment since the death of the said Rebecca and
Robert Cobbs and the Stattute of Limitations as also the decree
of the s'd Courts and his purchase for a Valuable Consideration
under the same without notice in Bar of the Pits. Bill
And seeing it appeared by the Pits, own shewing that they had
notice of some Contract or agreement under which he the Deft,
had so quietly held & Injoyed the premises he Demurr'd to that
part of the Bill which prayed a Discovery of the names of any
of the said Negroes or of their Inrcease, or by what special Con-
tract or Deed he held the same seeing a purchas'r for a Valuable
Consideration without Notice was not compellable by the rules
of Equity to disclose his Title and as the Infant Heirs of his Wife
might be affected thereby and were not made parties to the
said Bill and Especially as the Pits, deduced their Titles to par-
ticular Slaves for the reason aforesaid
The Pits, joined Jssue (as it is called in the proceedings) on
the said Plea & Demurrer.
The Court of Chancery ordered the s'd Plea to stand, as and for
part of the Defts. Answer but adjudged that the Demurrer was
not good and overruled the same and ordered the Deft, to make
a further and full answer And to pay the Pits, their Costs oc-
casioned by the s'd Demurrer
From w'ch order the Deft, prayed an Appeal to the third Day
of the next Gen'l Court [350] but the Pits, opposed and the Court
refused the satne as the s'd opinion did not determine the right
of the Parties to the Negroes in question
The Deft, put in his further Answer wherein he again set forth
and insisted on all the several matters which had been Contained
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thfv r raved that the s'd Dc^rree
be a' r Ilee mizb: be Decreed lo de-
Ar.d th': R*:=i.'Or.dent insisted there was no Error in the s'd
\)*'/.z''^. h"t that the same was agreeable to the rules of Equity
ar.^1 \,T2i\'*A that the Citirt wo-d proceed to Examine as well
t.h^; \)t:(^T*:f: OS the matter afsd Assigned for Error and that
th^: \)f'/:rf'J: fTiight in all things be affirmed
('//>)) Thf: s'd a74>eal came on to be heard before the president
of h;H Maj^:stiV:s Ojuncil and the rest of the Judges of the General
BARRADALL'S REPORTS B381
Court in Chancery in Virginia which Court then declared its
Opinion that there was no Error in the Decree but that the same
was agreeable to the rules of Equity and therefore decreed and
ordered the same shoud be in all things affirmed and that the
parties should bear their own Costs.
The Appellants not satisfied with the Concurrent opinions of
Both Courts in the Colony instantly prayed and were allowed
a further Appeal to his Majesty in Council and gave a Security
to prosecute according to the royal instruction in that Behalf
and ought thereby to have prosecuted the same with Effect
within 12. Months from the tenth of October 1751.
But instead thereof purely for creating all the Expence &
Vexation to the Respondent that the Appellants Coud do they
never took any step towards prosecuting their s'd Appea until
Febr. 1753. when more than 16. Month were Elapsed altho it
now appears of the Appellants own shewing that the transcript
of the papers was had out and Council retained for the Appellants
in London so long before as in June 1752.
Under this affected Delay the respondent was under a Necessity
of waiting and increasing his Expences as long as ever the Appel-
lants thought Proper to keep back their Appeal or else to petion
his Majesty in Council to dismiss the s'd appeal with Costs for
non-posecution
And as the respondent cotdd not conceive that ever the
Appellants intended to prosecute their Appeal and as such
methods of Delay are grown much in Use of Late and seem to be
an abuse of his Majesties Jurisdiction to the great Injury of Res-
pon*ts to the present Respondent about the End of January 1753
presented his petion to his Majesty in Council most humbly pray-
ing that this Appeal might be dismissed with Costs for posecution.
And his Majesty was pleased by order of reference to refer the
s'd Petition to the Consideration of his most Honourable Com-
mittee and on the 30th January 1753 the Resp't by his Council
moved their Lordships Accordingly, but their Lordships were
pleased to respite the matter for two months
And on the 21. Febr'y then following after that the Appellants
in Willftd breach of their own Security and of his Majesties
royal instructions had vexatiously delayed the respondent and
put him to all the Trouble and Additional Expence which was
any way in their power presented a petion that their Appeal
might be received nunc protunc
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ir: I 7":^ t--^,: u^ -u tr: —n -Lie i^s:-~T.t 'r-icerrj :f ?:izb Slavr^s
2 iitr-: 17 --:^--i in i rJuZ ii:':r-a± i; * £11 ~;e -renf i m ih-r Hush * i
ll'.tl ir i -»-r'V — iT i>_'l lie — ^rii-Si-illir^ 1^1 Ic^lc^l 1«.IS ^CX
-:; E-i -s-'iai =erni£ Zensfve in *be rr^esent Case, is, that the
Catise 'iz.ifz^ w':h the Aii^eZazrs Claim is iraiiifesily incon-
«iti/^i -jriih ibr an cf ibe 4th :: Ou-een Arrse and to give a Xew
Law a reir'.«t:*rc^ if ii be within the power, is Contiary to the
J-jitii^ c: any Legislatiire and therefore such a Construction
▼/o-nd be irratiotial illegal ani unectiitable
For which and inanv other reasoiis that mav be offered the
re«,por-dent humbly hopes that the s'd Decree of the General
C^ytirt of Chancery of Virginia of the 10. October 1749. shall
\jtt in all things affirmed and the Appellants Appeal be dismissed
with full Costs.
A. Hume Campbell.
R. Henly.
■^
BARRADALL'S REPORTS B383
I, W. W. Scott, State Law Librarian of Virginia, do hereby
certify that I have diligently compared the foregoing pages with
the Manuscript Volume in the State Law Library, marked
Barradairs Reports — and that the said pages are a true and
correct copy of the same.
Given under my hand this 6th day of March, 1909.
W. W. Scott,
Librarian.
TABLE OF CASES REPORTED BY
EDWARD BARRADALL
Page
ANDERSON & UX. vs. LIGAN B150
Devise of land; qttestion whether estate tail or in fee; judgment
for defendant in possession.
ANDERSON, quitam vs. WINSTON B201
Debt to recover for taking excessive iistiry; quere whether the
statute applied to contracts made before its enactment; but the
case was agreed and no judgment rendered.
ANONIMUS B107
Man marries a woman entitled to a part of her father's estate
and dies before distribution; does this distributive part survive
to the wife or go to the husband's admr. ? If reduced to posses-
sion during coverture by the husband, it belonged to his admr.,
otherwise to the wife.
ARMISTEAD vs. NEWTON B174
Grant to an infant; failure to seat the land; quere whether
infancy excused the seating until many years after the grant;
the judgment was against the defendant who claimed that
seating uie land had been excused by infancy.
BANKS vs. BANKS et al B304
Devise of land to son for certain uses by him; whether the son
took an estate tail, or an estate for life with remainder to his
children in fee in joint tenancy, in case they survived him.
BERNARD vs. STONEHOUSE B60
Action of ejectment; term having expired held that plaintiff
might recover damages.
BERNARD vs. WASHINGTON PARISH & al B272
Action of ejectment; question of whether a good title passed
by certain deeds descrioed; effect of grantee's djring in lifetime
of the plaintiff's father and of adverse possession.
BERRYMAN vs. BOOTH B42
Will found after death among testator's papers; a son was bom
thereafter and testator declared that he would make a will but
died without doinp^ so; birth of son held to be a revocation and
that the father died intestate.
BOYS vs. HOGGETT B80
Action on bill of exchange held barred after twenty years, by pre-
sumption of payment.
BROCK vs. TYNE Bill
Interpretation of a deed creating an estate taU, as to whom the
reversion descended.
BROOKING vs. DUDLEY. DIXON vs. BROOKING, and COLLIER
vs. BROOKING .B256
Three actions of detinue for slaves; (question if a sale after
judjg;ment and money paid to the next fnend would conclude the
plaintiff, being under age, or bar his rights; effect of the act
of a next friend upon the rights of an infant.
BUCKNER vs. CHEW et al B123
Conve3ranoe of "2,520 a's be the same more or less"; eviction
of part; whether there was remedy for the deficiency.
B386 VIRGINIA COLONIAL DECISIONS
BURGES vs. HACK B195
Devise of what appeared to be a defeasible fee ; quere if it was
not an estate tail; neld for the defendant '*tbat it was a contin-
gent fee" by a vote of seven to four.
BURWELL vs. OGILBY &c B105
Bill to subject real estate to pa3rment of debts, the personalty
being insufficient; will directs that "all my Debts may be paid
after my funeral expenses"; held that real estate be soAd and
debts paid, including simple contract debts.
CHEW vs. STEVENS B166
A special verdict by a jury and a survey of certain land claimed
unaer a patent; a claun of fraud and that the grant was void;
the fraud seemed to be proven but the defendant insisted that
he was an innocent taker and the grant good to him; judgment
at first for the plaintiff, but there was a reaxgument and nnallj
judgment for the defendant hy a divided court. Councilors Blair
and Byrd changed their opimons.
COLEMAN & UX vs. DICKENSON B119
Husband and wife by deed convey slaves (being real estate by
the law) in trust for their own uses, with proviso that if tbie
wife should die before the husband she could dispose of the
negroes by will; husband died first; wife by will disposed of
negroes and their increase; question if wife had the power so
to dispose of the negroes.
COLLIER vs. BROOKING B256
Same case as Brooking vs. Dudley, B256.
CORBIN vs. CHEW'S ADM'ORS B155
Debt on bond; plea plene administravit ; question as to allowing
to executor payment of certain simple contract debts; no
judgment but note refers to [223.]
CORBIN vs. CHEW'S ADMR B239
Whether deft, paying judgment after full notice of this action be
a devastavit and if an Ex'or may retain a debt by simple con-
tract against a bond creditor's; an ex'or's right of set off to a
debt due by himself to the creditor.
CROSS CASE B92
Indictment for stealing a horse; if the horse being a stray, to
take it was a felony; held that it was no felony.
CURLE vs. SWENEY B117
Action of ejectment for land between high and low water mark;
the accretion was p;ranted by the crown to another than the owner
of the land, to high-water mark; held that the grant was bad
and the accretion passed by the first grant.
DANCY et al. vs, WILLARD'S ADMX B355
A man dies intestate without heirs; his widow administers and
enters on the land; simple contract creditors sue; question
if they mav subject the rents and profits and if insufficient can
they sell tne land.
DARBY vs. STRINGER B45
Slight proof of seating held to save grant of land made many
years before.
DIXON vs. BROOKING B256
See Collier vs. Brooking, B256.
DUDLEY vs. BOOTH B256
See Collier vs. Brooking, B256.
DUDLEY vs. PERRIN et al B343
Action of ejectment ; a special verdict ; if the lessor was barred
of his action by the statute of limitations.
TABLE OF CASES B387
Page
DUNN et al, vs, WYTHE B81
Will of real and personal estate to wife dtirins^ widowhood, with
provision over in case of her marriage, and she is appointed
executrix; she died without having married again; held that
the wife took the whole estate and that it passed to her executor.
EDMONDSON vs. TABB B359
One died intestate; leaves widow and children; widow remarries
and has issue ; question of succession to the half bloods, and the
right of an aunt of the half blood on the father's side.
EDWARDS vs, BRIDGER. ., B117
Appeal from County Court in action of debt; former judgment,
rendered but not entered, pleaded in bar; demurrer to the plea
sustained in county court, but reversed on appeal.
EWELL vs. MILLER & UX, ADMR. &c B2d8
Action of covenant upon a deed of warranty; demurrer to the
declaration for lack of certainty; whether warranty covers the
fadltire of the wife to acknowledge with privy examination.
FARROW vs. FARROW B261
Devise of land; then a further purchase after the execution of
the will; son put in possession on promise to convey the same
to a brother; question of effect of the father's declarations and
the son's promise.
FIELD vs. COCKE B185
Action upon the case for an escape; verdict subject to a point
reserved, the question being of the responsibility tor the prisoner
between the old sherifE and the new ; and the judgment seems
to have been against liability at all.
FITZHUGH vs. BURWELL B180
Question of the effect of a deed by a married woman without
privy examination; of how far the survivorship of a joint
tenant and grantor overcame that defect; also effect of long
continued possession; but the cause was agreed by the parties.
GILES &VXetal. vs. MALLICOTE B71
Action of detinue; special verdict; devise of slaves "Quashey
and Tomboy" construed; and whether child of which female
slave was quick at the making of the will passed b^ the devise.
But the case was compromised and no judgment given.
GODWIN vs. KINCHEN'S EX'ORS B68
Gift of several legacies with a residuary clause in the will which
was construed.
GOODLOE vs. DUDLEY &c B87
Appeal from Covmty Court ; action bv High Sheriff against under
sheriff and the surety on his bond, to recover quit rents for
which the High Sheriff was sued; plea of the statute against
bujdng and selling offices; judgment for the plaintiff.
GRAVES vs. KENNAN B43
Appeal from County Court; action of detinue for a chest of
medicine; verdict and judgment for the plaintiff below; on
appeal objection that the verdict found that "the Deft, did
detain" and not that he '*doth detain," and that Detinue would
not lie for a chest of medicines without setting forth the par-
ticular medicines; judgment of County Court reversed.
HARRISON vs. HALLY B80
Tudj^ent against a sheriff; attachment against his lands (he
having no personalty) sustained.
HARWOOD vs. GRICE B45
County Court refused to permit an executor to testify to prove
a will ; held on appeal that he was a good witness.
B3SS VIRGINIA COLOyiAL DECISION'S
HAWSIXS 99 TH^RNTOX . ...^ . .B:i4S
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N5 w. BOXGHAX fc. . B >:7
HAYWOOD «« jrf- o CHRISVAX*** ji ......_. Bi-7
crT^ircE , dc: rx* drrae oun, beki as acac::s: lae rtai^. at trae
fHVii e a ti:at those aiaines vese ki c rr j S rd a ben ot ifae tkSdv's
<icver asd tbefc^ore xxx co be iH^ arVi l
HILL rf. HILLS EX'ORS 060
Bin in fhaTT^nf ' agarrwt heir for possessioa of laad deiiTered
to ex'or? c^ oertan^tnssss; biAi ihat a c oun of eqizity wodd
nemer essabiish a in^ against as heir vitboczt a trial at law.
HILLft UX r5. HENRY A: UX Bl-iS
Indebixaius assumpsit: uH debis, mom assmmgps^ aad Icmtataoos:
jgd ^giz jei i t for pit. ai:ri writ at error; arrjirr i ed as ligfat ot actioc
cot lamd by the statme.
HUNT vs. HARRATSOX 5 EXORS B4o
Jadgiaent against Harratson in his tifetzme; scin facias: hdd
that lavyer^s fee shoold be taxed in bill of costs.
ISBEL ft UX w- BUTLER ic di B43
Held that slave given by intestate in his Hfetinie to 3roanger
child should be taken at value when given and not as of the date
of *'Tcstor's Death."
IVEY m. FITZGERALD BlSS
A question of heirship depending upon the facts proved in the
case. The judgment of the lower court was reversed.
JAMESON vs. VAWTER B51
Appeal from refusal to compel joinder in demurrer to evidence
ofiered viva voce; held that the court should have made the
plaintiff join, or have directed a special verdict.
JENNINGS ft UX vs. WILLIS B43
If after order entered on argument and judgment affirmed
another argument should be heard; held **as being without
precedent."
JONES vs. LANGHORN Bo2
Action of detinue; special verdict; woman holding slaves
devised to her for life, with remainder over, marries and joins
with her husband in mortgage of the ^ves "for 99 years";
husband dies; action by mortgagee against widow for the
slaves; "judgment for the Deft, per ioiam curiatm praeter
Lightfootft Tayloe."
JONES &c. vs. PORTERS B93
Effect of acknowledgment by married woman, of deed, without
privy examination; bill to have defect supplied, dismissed.
KING, THE, vs. CROSS B92
Indictment for horse stealing, in court of Oyer and Terminer;
taking an estnty held not to be a felony. S. C. Cross's case.
KING, THE, vs. HARRISON B66
Presentment for erecting gates on the King's highway; plea,
license from the County Court; plea held good.
KING, THE. vs. McCLANAHAN B40
Debt for refusing the office of Sheriff; plea that defendant "never
was commissionated," the statute applying only to a "person
hereafter commissionated" held good.
TABLE OF CASES B389
Page
KING, THE. vs. MOORE B38
Iiifomiatioii for not transmitting to collector of customs "list
of the slaves by him sold imported in the ship A."; judgment
for the defendant.
KING, THE, vs. OLDNER& BRILEHAN B90
Indictment for feloniouslv taking the goods of persons unknown ;
taken from a stranded ship; d^ence — no jtinsdiction — wreck-
ing no felony — no property in goods proved ; held no felony.
KING, THE. vs. PRYOR B39
Indictment for assault; defence, before indictment had given
note in satisfaction of the assault; held no defence "because there
is a fine to the King."
KNIGHT vs. TRIPLETT B127
Purchase of land with actual notice of an tmrecorded lease;
brings ejectment and obtains judgment; bill in chancery for
relief; demurrer sustained, the registry law avoiding an un-
recorded lease as against a purchase.
LIGHTPOOT vs. LIGHTPOOT B40
Devise of remainder of estate to son "& the heirs male of his body,
and if he dye without such issue or if there be any failure here-
after in the male line Then I give the same to my brother P.
Lightfoot & his heirs, He or they paving to my daughter 2500;^
in full compensation for the same ; son survived his father,
but died without issue ; suit by daughter for residue of personal
estate and profits of real estate from death of father to death
of son; demurrer to the bill sustained.
LUTWIDGE w. FRENCH B181
Action on bond in a penalty of 12,000 lbs tobacco, conditioned
for i>a3rment of 6.000 lbs; verdict and judgment; bill for relief
offering ctirious eauities; demtirrer overruled by the County
Court and appeal ; but it does not appear what was the judgment
of the Genend Court.
Mccarty vs. Mccarty's ex'ors B34
Bill in chancery for the accounting of a trust estate ; defence that
debt of the trustee was discharged by his being named as ex'or
and certain equities set up in the answer; bifl dismissed.
MAJOR vs. DUDLEY B66
Bill for an account against defendant who had married the exec-
utrix; but an account made some years before was sustained as
a good defence.
MASON'S CASE B51
Act of limitations held to be against a bill of exchange. See Boys
vs. Hoggatt, B80.
MEGGS vs. BATES B39
Action on promise to pay debt of another; defence nudum
pactum; held a good promise tho' without consideration.
MICON vs. CORBIN B37
Action upon an account; referees appointed; this method
objected to, but objection overruled.
MORRIS vs. CHAMBERLAYNE B157
A special verdict in an action of indebiUUus assumpsit, and the
quesfion was one of liability of the under to the High Sheriff
for quit rents, the ofiSce being farmed out to the under sheriff;
the judgment was in favor of the High Sheriff.
MORRIS vs. CHAMBERLAYNE B51
As to the competency of an interested party to testify; ex-
cluded unless interest released.
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B21
B2
TABLE OF CASES B391
Page
Same B4
Construing the will of Wm. Wilkinson and the kind of estate
which passed thereby; the same will as to which Rev. Dr. Hinch-
man (supra) gave an opinion.
PAUL, J., LL.D B18
One who "unadvisedly" married his late wife's sister and
threatened with prosecution by the Eclesiastical Court is ad-
vised that he ma^ be prosecuted, the marriage annulled and
the children illegitimate, but as such marriages were merely
voidable, if no one should prosecute, the children would inhent
and the widow have dower.
PIGOT, NATHANIEL B17
Surrender of messuages and lands, and recovery suffered,
whether after great leneth of time the first grantor could redeem
on payment ot prindp^ and interest; that the statute of limita-
tions did not apply to mortgages.
POWYS, SIR THOMAS B7
Mainly as to the right to interest upon balances in a complicated
matter of account between a planter and his factor in London to
whom he shipped tobacco and other commodities, and through
whom he bought goods.
RANDOLPH, SIR JOHN B29
Payment of interest on purchase money considered excused by
long delay and neglect in making title and giving possession
of the property.
RAYMOND, SIR ROBERT B9
That in an action at law, if the principal sum had been paid there
could be no recovery of the interest on an implied promise.
Same B26
As to the kind of estate, involved in an action of ejectment upon
special verdict.
Same B5
As to an accotmt between a planter and his London factor upon
the question of the safe delivery of goods in Virginia.
REEVES, THOMAS BIO
Thought no interest should be allowed on a running account,
unless either there was an express promise or an account stated
in writing and **the Party hath been long out of his money."
Same B16
Advised on same case as Joseph Chesshyre about matter of *' Wm.
Green of Gloucester" tliat a deed by Ralph Green patented of
King Charies II was sufficient.
STRAHAN, WILLIAM, LL.D B20
One who was inclined to propose marriage to the sister of his
late wife, but finding that the laws oppose, wants to know "how
far Disobedience to them can temporarily affect him"; he is
advised of the many possible unpleasant consequences, and
probably proposed to some other man's sister-in-law.
STANYAN, TEMPLE B22
This is simply an order from the Privy Council determining an
appeal as to an account between the estate of Richard Perry
and Col. William Randolph's executors. Mr. C. Waerg there-
upon advises bringing a bill in chancery to require the estate
of Col. Randolph to pay the debt which amotmted to "2460 lb"
and the costs.
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POITELL ft UX rf. THVRXAX 04
At ^rjrjz. *-A enectrrjfrrt iz^T-iirtz^ tbc qu e &u oti of Tbedber a deed
ir.^4e when tijc granvjc b^ so r: , trr e si ia ibe ^ up a iy. bat
irhi^h was la^er acrpdrcd bj hrr; by desocsi, paswrd a gocxi diie
v> *jrjt ;?rac^ee : held that it iii aot, apparemlj upon the groand
that a i^ram otf a z:ere possibtlitj was
REEVE5 «. WALLER
Appeal from order of ooort staying a verdict on motion in arrest
of rud^rrrjsr^l in an action for a betting debt : the qiKStion befofe
the Ger^eral Coort was one of jttnsdiction for an appeal; held
that the plaintiff could appeaL
RICHARDSON vs, MOUXTJOY B207
Actir/n of trespass; special verdict; title to the land involved,
the county court holding that the defendant had no title, found
for the plfi., the deed of a feme covert being invtdved; this jndg-
ment seems to have been afi^rmed, and the cotmsel who lost said
of his own argument "never was an argument so little iinder>
ROBINSON vs, ARMINSTEAD et al B223
A suit for partition of a joint estate which had become affected
by claims to the right of survivorship and facts outside of the
cr^nveyances; demurrer to the claim for equitable rdief, which
was sustained.
ROGERS' ADMX. vs, SPALDEN B81
Affidavits taken before [suit brought not allowed to be read in
evidence.
TABLE OF CASES B393
Page
ROSE. EX'OR BAGG vs. COOKE & o/ B229
Debt on bond against an heir and devisee; plea of infancy; held
bad under the statute making the heir liable for the debt of the
ancestor to the extent of assets received. No judgment here,
but a reference to same case [213] B229, where it was held that
the plea of infancy was bad.
SCARBURY & UX vs. BARBER'S EX'OR B294
Bill in equity after husband's death to enforce an ante-nuptial
agreement to have the property of the wife held as her separate
estate, and to compel payment of late husband's indebtedness
to the widow.
SENIOR vs. MORRIS B129
Appeal from the county court; debt on arbitration bond in a
penalty defence "no Award" claiming that the action of the
arbitrators was "a Masterpiece of Nonsence." Judfi^ent of
County Court was for damages instead of for the penalty of the
bond. Reversed on this ground.
SLAUGHTEE vs. WHITELOCK B251
Devise of slaves to son and daughter "and the lawful issues of
his body forever," with limitation over; question if the limita-
tion over be good.
SMITH vs. SMITH B320
Deed of gift of land with reservation of right of free ingress and
egress to and from the same dtiring the grantor's natural life,
with reversion to another if the grantor should die without heirs,
question if any estate, and if so, of what kind, passed by this deed.
SMITHER vs. SMITHER B130
Ejectment for moiety of land. Special verdict for moiety
claimed to be defective, but judgment by the County Court, and
on appeal affirmed.
SPICER, ADMRX. OF STONE vs. POPE Seal B232
Devise of plantation, slaves, etc., to wife for life, with certain
legacies to his daughters under a certain condition of obedience
"to their Parents.' A bill for discovery of the personal estate
and an accounting. Questions of the staleness of the claim and
the irregidarity of obtaining letter of administration.
STITH vs. SOAN & al B37
Information against the Justices of a county for not keeping a
sufficient prison; proved by record in an action against the
Sheriff for an escape.
STRETTON vs. MARTIN B55
Debt on bond with condition to pay a sum of money so soon as
release should be secured from owner of a ship of all their rights
and ship delivered as agreed; proof certificate or release;
objected to as incompetent by itself; objection sustained and
judgment for defendant.
TAYLOR vs. GRAVES B56
Detinue; case agreed; devise of slaves for life with remainder,
and the increase of the slaves to his heirs; the will construed,
the insistence of the plaintiff being that the slaves were to be
treated as real estate; the judgment was for the defendant.
TAZEWELL & UX vs. HARMANSON B147
Ejectment; deed recorded but not delivered, but the case was
compromised.
TIMSON vs. ROBERTSON B85
Whether upon the case stated there was an estate tail or a con-
tingent fee, and whether Plaintiff was barred by the statute of
limitations; ^uere whether the word issue was a word of pur-
chase or of limitation.
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